Not every decision is about money. An enduring guardian makes the other ones.
An enduring guardianship appoints someone to make decisions about your health, your treatment and how you live, for any period in which a disability leaves you unable to make them yourself. It is made under different legislation from a power of attorney, and it does the job a power of attorney cannot.
An enduring guardianship is an appointment made under the Guardianship Act 1987 (NSW). You name a person — your enduring guardian — to decide about your health care, your medical treatment and where you live, for any period in which you cannot decide yourself.
It is not a power of attorney. Money, property and legal affairs sit under separate legislation, the Powers of Attorney Act 2003 (NSW), and under a separate document — see power of attorney. Neither instrument reaches into the other's territory, which is why the two are usually made together.
It operates only when you cannot decide for yourself
An enduring power of attorney can be made to operate immediately, while you are perfectly well. An enduring guardianship cannot. The appointment has effect only during a period in which you are, in the language of the Act, a person in need of a guardian — a person who, because of a disability, is totally or partially incapable of managing his or her person. Disability is itself defined in the Act, and includes advanced age and mental illness.
Your guardian cannot overrule you. While you are able to make a decision about your own health or living arrangements, it remains yours. The appointment sits dormant until it is needed.
The functions you hand over
You decide which functions your guardian has. The ones most commonly given:
- deciding where you live;
- deciding what health care you receive;
- deciding what other kinds of personal services you receive; and
- consenting to medical or dental treatment on your behalf.
You can give fewer, and you can attach directions and limits — that you are to remain in your own home for as long as it is safe, for instance. Directions repay some thought: a guardian who has been told what you would have wanted has a far easier job than one guessing at it in a hospital corridor.
If you appoint nobody, the Act supplies somebody
Where consent to medical or dental treatment is needed and you cannot give it, the Act works down a list of who may be asked: a guardian who holds the function of consenting to that treatment, then a spouse in a close and continuing relationship, then an unpaid carer, then a close friend or relative. It is the medical and dental consent function, specifically, that puts your guardian at the top of that list; the health care function alone does not.
Where there is no appointment, or the family cannot agree, someone has to apply to the Guardianship Division of NCAT for a guardianship order — a hearing, decided by a tribunal rather than by you.
How it is made
You must understand the effect of what you are signing at the time you sign it. The instrument must be in, or to the effect of, the form prescribed under the Act. You sign it, each guardian signs to accept the appointment, and the signatures are witnessed by an eligible witness — an Australian legal practitioner is one — who certifies that the effect was explained and appeared to be understood. The person you appoint must be at least 18, and must not be someone professionally or administratively responsible for services provided to you.
You can name an alternative guardian to step in if your first choice cannot act — worth doing if they are a similar age to you. While you have capacity you can also revoke the appointment, by a revocation in the prescribed form witnessed the same way the appointment was.
What a guardian cannot do
- make or change your will, or deal with your money and property;
- vote on your behalf, or override a decision you are still able to make yourself;
- consent to what the Act defines as special treatment, which is a matter for the Tribunal; or
- act outside the functions you actually gave them.
An advance care directive is different again: it records your own decisions about future treatment rather than appointing somebody to make them, and the two need to say consistent things.
What it costs
We quote per matter before work starts, with GST and any disbursements identified separately from our professional fees. A formal costs disclosure is provided in accordance with the Legal Profession Uniform Law.
The two documents side by side
They are different appointments under different Acts, and one does not cover the other. Most people who make one should make both.
| Enduring power of attorney | Enduring guardianship | |
|---|---|---|
| Governing Act | Powers of Attorney Act 2003 (NSW) | Guardianship Act 1987 (NSW) |
| Decides about | Money, property and legal affairs — banking, paying bills, selling or buying property. | Health, medical treatment, where you live, and the services you receive. |
| Cannot decide | Anything about your health, care or living arrangements. | Anything about your money or property. |
| When it starts | Immediately, or on a stated date or event — your choice when you make it. | Only if and when you lose capacity to make the decision yourself. |
| Do you need both? | Usually yes. Appointing an attorney leaves nobody able to make a medical or care decision; appointing a guardian leaves nobody able to pay for it. | |
We do the three together. A will, an enduring power of attorney and an enduring guardianship appointment can be prepared and signed in one appointment, which is usually how it makes sense to do it — each has its own witnessing requirements, and done separately one of them tends to get left.
Questions families ask us.
How is an enduring guardianship different from a power of attorney?
They cover different ground. A power of attorney under the Powers of Attorney Act 2003 (NSW) deals with money, property and legal affairs. An enduring guardian, appointed under the Guardianship Act 1987 (NSW), makes health, lifestyle and medical decisions — where you live, what services you receive, what treatment you consent to. Different legislation, different forms, and neither can do the other's job. Most people sign both at the same time.
When does the appointment start operating?
Only during a period in which a disability leaves you totally or partially incapable of managing your own person. Unlike an enduring power of attorney, which can be made to operate immediately if you choose, an enduring guardianship under the Guardianship Act 1987 (NSW) has no effect while you are able to make your own decisions. Your guardian cannot step in over the top of you.
What happens if I never appoint one?
Then the Act supplies an answer instead of you. For consent to medical and dental treatment there is a statutory list of who may be asked — a spouse in a close and continuing relationship, then an unpaid carer, then a close friend or relative. For broader decisions about care and accommodation, someone may need to apply to the Guardianship Division of NCAT for a guardianship order.
Can my enduring guardian sell my house or manage my money?
No. Financial and legal decisions sit outside a guardian's authority entirely. If the same person is to handle both sides, they have to be appointed twice — once as your enduring guardian, and once as your attorney under an enduring power of attorney. They are separate documents with separate formalities, even when the name written on them is the same.
Can I change my mind later?
Yes, while you have capacity. The appointment can be revoked by a revocation in the prescribed form, witnessed the same way the appointment was, and it ends on your death. Life events are the usual prompt to revisit it — a separation, a guardian moving interstate, a falling-out, or the person you named becoming the one who now needs looking after.
Tell us what's happened.
Tell us who you would want deciding your care if you could not decide it yourself, and we will tell you what the appointment involves and what it will cost.
Information on this site is general in nature and is not legal advice, and may have been overtaken by a change in the law. Contacting us does not create a solicitor–client relationship.