What is an Appointment of Enduring Guardian?
An Appointment of Enduring Guardian appoints someone to act on your behalf as your Guardian in the event that you lose your mental capacity and cannot conduct your own affairs. The document is very similar to an Enduring Power of Attorney but it relates only to health and lifestyle issues. For example, if you required medical or dental treatment (which usually requires a consent form to be signed) this could not be undertaken if you have lost your mental capacity. Your appointed guardian can do this for you. Similarly, if you need to be moved into a nursing home or nursing facility because your condition has deteriorated, your Guardian can make the necessary arrangements on your behalf with the health authority. An Enduring Power of Attorney does not extend to these areas.
If you lose your mental capacity through injury or illness, your family cannot make these arrangements for you unless an Appointment of Enduring Guardian has been correctly signed. Your family would have to apply to the Guardianship Tribunal to be appointed as Guardians in order to look after your affairs. These applications are not always successful and the end result could be that a government agency (eg. Public Trust Office) is handling your affairs.
Did you know that your Enduring Power of Attorney in New South Wales no longer applies to Health and Lifestyle Issues?
Many New South Wales residents are unaware that the New South government changed the laws in relation to Enduring Powers of Attorney in 2003. Previously Enduring Powers of Attorney applied to all the usual areas, e.g. financial, property transactions, health (including medical) and lifestyle issues.
In 2003 (Power of Attorney Act 2003) the New South Wales government split the functions of the Enduring Power of Attorney and restricted its use to that of financial, property transactions and general issues. Importantly, they specified that health and lifestyle issues would now be governed by a separate document called an Enduring Guardian.
The Enduring Guardian is required to be used for all issues concerning health (e.g. medical authorisation for treatment, signing indemnity forms for surgery etc.) and lifestyle issues (e.g. placing someone into a retirement village or nursing facility).
Many people are blissfully unaware of the change in the law and believe that they have safely secured their future by having a signed enforceable Enduring Power of Attorney. Sadly, this document does not cover health and lifestyle issues since 2003 and many people are finding out the hard way that these documents are now out of date. In many cases elderly spouses are required to apply to the Guardianship Tribunal in order to obtain permission to make these decisions for their spouse. The procedure before the Guardianship Tribunal can be lengthy and frustrating for elderly people, particularly in circumstances where they urgently require the ability to sign on behalf of their spouse. This applies equally to the families of people affected by the sudden onset of a condition which deprives the person of their mental capacity (e.g. stroke, head injury, Alzheimer's Disease etc).
For any enquiries regarding Appointments of Enduring Guardian, please contact the Department Manager Lesley Barnes, on direct line (07) 5506 8241 or by email on lbarnes@attwoodmarshall.com.au.
Why not complete our online enquiry form and have us contact you today!
With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff, you can also visit us an office near you.
Attwood Marshall Lawyers
Northern NSW & Gold Coast, Queensland
Gold Coast Estate Planning, Estate Plan, Will Planning, Estate Dispute, Estate Litigation, Enduring Guardian