Why include an enduring guardian in your estate planning?

Date: Sep 03, 2015

While it is often easier to avoid thinking about it, estate planning is a necessary undertaking. This is where you formally document how your assets will be distributed once you pass away.

The planning should also include provisions for an enduring guardian, a person who is able to make critical decisions while you are still alive but don't have the capacity to make them yourself. For example, if you suffer a serious injury or disability that leaves you unable to determine your own medical care. Enduring guardians, once appointed, can make decisions regarding your health, medical treatment and lifestyle.

How can I appoint an enduring guardian?

You can choose an enduring guardian if you are over the age of 18. Once you reach this age, you can also be appointed as an enduring guardian for someone else.

To appoint an enduring guardian, you will need to complete a legal form of appointment, sign it, and have the form signed by the appointed individual. These signatures will need to be verified by a witness, someone who is either:

  • A registrar of the Local Court,
  • An Australian legal practitioner,
  • An overseas legal practitioner,
  • An approved officer from NSW Trustee & Guardian, or
  • A Public Guardian.

Signing in front of a witness shows that they understand what this appointment entails.

What decisions can my enduring guardian make?

An enduring guardian, once appointed and verified, can make medical, lifestyle and health decisions. You are able to specify what decisions the enduring guardian is able to make. These decision areas are called functions.

Functions commonly include where you will live, what health care you receive and from which location, personal services and other types of medical treatment.

Once you have appointed an enduring guardian, they are guided by the Guardianship Act 1987 (NSW), which outlines the standards that a guardian must adhere to.

This legislation is designed to take into account your views as the subject of an enduring guardian order. Before signing an enduring guardian into effect, note that they are not subject to any sort of direct supervision, however their actions can be challenged through the NSW Civil & Administrative Tribunal if necessary.

It is important to note that you can still change an enduring guardian if you have the required mental capacity. However, you also need to be able to deliberate on these choices and then communicate the choice to others.

Speak to a wills and estates lawyer to understand more about the importance of an enduring guardian and the estate planning process.