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We all prefer to decide for ourselves how we live, where we live, what kind of medical treatment we should be receiving, or what kind of services we should get. Unfortunately life sometimes throws us into unexpected situations and may render us unable to make those decisions for ourselves.

An enduring guardian is someone you choose to make personal or lifestyle decisions for you when you are unable to make these decisions for yourself. You can specify what kind of decisions your guardian can make and you can also direct your guardian how to carry out those decisions.

The information in this article is for general advice only and may not be suitable for your situation. If you have any specific or particular questions you should make enquiries with your solicitor.

Who can be an enduring guardian
In addition to being someone that you can trust to make decisions in your best interests, the person that you appoint as your enduring guardian must be above the age of 18. You can appoint more than one enduring guardian, and you can even give them separate functions and responsibilities.

You cannot appoint a person who, at the time of appointment, provides medical treatment or care to you on a professional basis, provides accommodation services or support services for daily living on a professional basis, or is related to one of these two criteria.

Decisions an enduring guardian can make
The enduring guardian must act within the principles of the Guardianship Act 1987, in your best interests, and within the law. Their capacity to make decisions on your behalf can be flexible or fixed. For example, you can direct your guardian to consult with your family or a close friend before making a particularly important decision.

An enduring guardian cannot make unlawful decisions and also cannot make a will for you, vote on your behalf, consent to marriage on your behalf, manage your finances, or override your objections, if any, to medical treatment.

Starting and ending an enduring guardianship
While you can appoint an enduring guardianship, your enduring guardian will only start acting on your behalf when you love the capacity to make your own decisions.

Enduring guardianship ends when you die or when you revoke the guardianship. There are also other conditions that may cause an enduring guardianship to end, such as if you marry, if one of the joint guardians dies, resigns, or becomes incapacitated (unless you provided for alternate guardians or otherwise), or if the Guardianship Tribunal revokes the appointment of the enduring guardian.

Guardianship Tribunal
The Guardianship Tribunal reviews the actions of guardians and has the power to revoke or appoint an enduring guardian. In addition to this, the guardian may in specific circumstances request the Guardianship Tribunal to review the enduring guardianship or authorise certain decisions. Similarly you or someone on your behalf can request the Guardianship Tribunal to review the enduring guardian’s conduct should you or someone on your behalf object to the enduring guardian’s decisions.

For more on Estate Planning, please see the below articles:
Estate Planning – a new year’s resolution: http://www.justicecentre.com.au/web/node/134
Challenging a Will – Family Provision Orders: http://www.justicecentre.com.au/web/node/158
Wills for Business: http://www.justicecentre.com.au/web/node/3
Power of Attorney – Information: http://www.justicecentre.com.au/web/node/201
Superannuation - http://www.justicecentre.com.au/web/node/211

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