Quotes and Frequently Asked Questions (FAQs) about your enduring guardianship.
Appoint someone to look after you (aside from your finances – see power of attorney) when you’re unable to look after yourself.
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Frequently asked questions
Frequently Asked Questions – Enduring Guardianship
An enduring guardianship is a legal document in which you appoint someone (ie, your enduring guardian) to make decisions about your care and welfare when you cannot make your own decisions (ie, generally due to lack of mental incapacity).
Your enduring guardian can make decisions about where you live, what health or dental treatment you receive (and consent to that treatment on your behalf), what personal services you require and any other matter relating to your care and wellbeing. You can also limit or restrict what decisions your enduring guardian – although just remember, if you make their powers too restrictive, then it potentially defeats the purpose of having the enduring guardianship.
Your enduring guardian cannot make decisions about your legal and financial matters. In New South Wales, these legal and financial matters can only be handled by your attorney appointed under a general power of attorney or an enduring power of attorney. We can also assist with preparing the power of attorney.
If you lose your mental capacity and you’re unable to look after yourself, someone will need to look after you.
Generally, your next of kin or a close family member would take on this responsibility, but this may not necessarily be clear depending on the dynamics of your family. To avoid any confusion (or disagreement), you can appoint an enduring guardian through the enduring guardianship.
Whether you should consider appointing an enduring guardian is influenced by various factors such as:
- Your age.
- Your health.
- Your family history of mental illness.
- Your concern about accident or misfortune.
If you don’t appoint an enduring guardian, and there are disputes between your family as to who can make decisions or who is responsible for you, it can eventually lead to legal action and court proceedings. An enduring guardianship doesn’t guarantee to avoid these complications, but provides clear (and formal) instructions to those concerned at least.
Loss of mental capacity means you’re no longer able to make decisions for yourself. For example, if you suffer an injury resulting in you being in a coma or worse (but not dead), then you would have lost your mental capacity. If you have an illness and you’re no longer communicative, you could also have lost your mental capacity. A doctor can also examine you and determine that you’ve lost your mental capacity or you’re no longer able to make decisions for yourself.
During those times, your enduring guardian would then be required to make some important decisions on your behalf.
Your Will only comes into effect after you pass away. If you’re still alive, but you’re mentally incapacitated (ie, you can’t make decisions for yourself), then you still need someone to look after you and make those decisions for you. Who should that be?
You appoint your enduring guardian to make those care and welfare decisions for you while you’re still alive.
Of course, you can appoint the same person who is your executor in your Will to also be your enduring guardian, but their appointment as your enduring guardian would need to be in the enduring guardianship – which is a separate document to your Will.
You should appoint someone who can and will look after you and who make decisions and act in your best interests. Generally, most people will appoint their next of kin (ie, spouses, children or parents) or close family members because they know you – however, this also depends on your relationships and the dynamics of your family.
If you’re still not sure, think about who is closest to you and who do you trust the most. Whoever that is would probably be the best person. Just make sure you ask them first.
To appoint an enduring guardian, you must complete the enduring guardianship form and you must sign that form in front of a qualified witness (ie, a lawyer, like us).
Before your enduring guardianship is valid, we must provide you with legal advice as to the effect of appointing an enduring guardian, certify that we’ve provided you with that advice, and witness you sign the enduring guardianship.
Your enduring guardian must also obtain legal advice, the person who provided that advice must also certify that they’ve provided advice to your enduring guardians, and they must witness your enduring guardian sign the enduring guardianship.
The process is actually quite straight forward, but the best thing is that we look after this process for you as part of our professional services anyway.
The cost for you to appoint an enduring guardian through an enduring guardianship is relatively cheap compared the cost (and the time/process) of trying to obtain guardianship over you once you’ve lost your mental capacity – think about court proceedings.
We offer fixed processional fees to prepare and witness the enduring guardianship.
Obtaining a quote is quick and simple – in fact it’s an instant online quote once you’ve completed all the necessary information. Have a look at our online quoting tool for more information.
Yes, you can appoint as many enduring guardians as you like – however, appointing multiple enduring guardians can create other legal and practical complications. You should seek legal advice before you decide to appoint multiple enduring guardians.
There are several ways that you can appoint multiple enduring guardians and so it depends on what you want them to do and how you want them to do it. For example, you can appoint your enduring guardians jointly, jointly and severally, or in the alternative.
Also, each of your enduring guardians must obtain legal advice before they accept their appointment, and so the process of accepting, signing and witnessing for multiple enduring guardians can become a little logistically complicated.
Yes, however those forms and templates are for office use only.
There are other forms and templates available on the internet which you can use, however in order for your enduring power of attorney to be valid, it must be signed in front of a ‘qualified witness’ (ie, lawyer) after you have received legal advice from them. Your enduring guardian(s) must also receive legal advice before they accept the appointment.
No, if you know what you’re doing then you don’t need a lawyer to help you prepare an enduring guardianship, but you need a lawyer to provide you and your guardian with legal advice and to witness your signature.
There are forms that can be downloaded from the internet, but since you need a lawyer for the legal advice and witnessing, you might as well ask that lawyer to help you prepare the enduring guardianship for peace of mind.
Yes, you can leave instructions for your enduring guardian as part of the enduring guardianship. So if you want your enduring guardian to make certain decisions about where you live, what personal or healthcare services you will receive, or what medical and dental treatments they should consent to on your behalf, you can leave those specific instruction in your enduring guardianship.
If you don’t leave any specific instructions, your enduring guardian will have to make decisions based on what they think is in your best interests.
Yes, your enduring guardian must obtain legal advice.
A lawyer must advise them of the effect of the enduring guardianship, their responsibilities as your enduring guardian, and confirm that they voluntarily agree to become your enduring guardian before the accept the appointment.
Yes. An enduring guardianship that was validly made in another state or territory will be recognised in New South Wales.
If you now live in New South Wales, to avoid any complications that may arise from trying to rely on an interstate or foreign enduring guardianship, you should make another enduring guardianship here.
Your enduring guardian can be anywhere, but it may not be practical for them to be overseas (or distant from you) if they’re also supposed to be responsible for your care and welfare.
Yes, while you still have your mental capacity you can revoke or change your enduring guardianship. If you have lost your mental capacity, then someone else can apply to the NSW Civil and Administrative Tribunal (NCAT) to review the appointment.
No, your enduring guardian is appointed to make decisions about your care and welfare only – not legal or financial matters.
If you want someone to assist you
Without a specific enduring guardian, your next of kin (ie, spouse or children) or your family may be consulted as to what should happen to you if you can’t make your own decisions. If something more formal is required, then your family would need to apply for Guardianship Orders through the NSW Civil & Administrative Tribunal (NCAT).
The NCAT process for applying for Guardianship Orders is available from their website.
We provide free quotes. We offer low cost fixed-fee professional services to make the enduring guardianship.
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