Similar to a Power of Attorney, except for personal, health and lifestyle decisions, the appointment of a Guardian or an Enduring Guardian is an important estate planning tool.
What is a Guardian?
A Guardian is somebody who is appointed to make decisions about a persons health, accommodation, services or other lifestyle matters. The NSW Civil and Administrative Tribunal (NCAT) can appoint a Guardian under the Guardianship Act 1987 for a person with a decision-making disability.
Some of the decisions a Guardian can make include decisions about where to live, what services to use and consent to medical or dental treatment on your behalf.
What does NCAT look at before making a guardianship order?
Before making a Guardianship order, NCAT must be satisfied that:
- The person has a decision-making disability;
- The disability results in the person being partially or wholly incapable of making themselves;
- There is a need for a person to have a Guardian appointed.
However, if the person has already appointed a substitute decision maker, such as through an Enduring Power of Attorney or informally, NCAT may not make an order.
What is an Enduring Guardian?
An Enduring Guardian is an important estate planning tool which allows you to appoint somebody to make personal and lifestyle decisions on your behalf when you lose capacity to do so. It is similar to an Enduring Power of Attorney, but for decisions such as where you live, or what medical treatment or services you should receive.
In NSW, your enduring guardian must act within the principles of the Guardianship Act 1987, which is in your best interests and within the law.
Interstate Enduring Guardianship Appointment
NSW automatically recognises Enduring Guardianship appointments made in other states and territories and there is no requirement to apply to NCAT for recognition of an interstate Enduring Guardianship document.
Other states also recognise NSW Enduring Guardian documents using their own legislation, some of which are automatic. It is important to know which states do, and which do not if you are planning on moving around Australia.
Concerned about the conduct of an Enduring Guardian?
If you are concerned about the conduct of an Enduring Guardian, for example, if you believe they are not acting in the best interests of the person who has lost capacity, you can apply to have their appointment reviewed.
This is done by making an ‘Application for Review of Enduring Guardianship appointment’ through NCAT.
NCAT can then suspend, revoke, vary or confirm the appointment of an Enduring Guardian, and declare the appointment has effect.
How can the appointment of an enduring guardian be revoked?
If the person who prepared the enduring guardian still has capacity and wishes to revoke it, they can simply revoke the appointment by completing the prescribed form in Schedule 2 of the Guardianship Regulation 2010. The appointor must give written notice to the Guardian that the appointment has been revoked.
If the appointor has lost capacity, only NCAT can make changes to their appointment. For NCAT to revoke an enduring Guardianship, they need to be satisfied that the revocation is in the best interests of the person who has lost capacity.
How can we help?
At Rockliffs, we can assist you in preparing your Enduring Guardianship documents and give you advice on the nature and effect of the document, as well as assist Enduring Guardians in understanding what their rights and responsibilities are as a Guardian. We can also assist and advise you in relation to revoking an Enduring Guardianship appointment if you suspect a Guardian is not acting in the best interests of an appointor.
For more information on Guardians or Enduring Guardians, or to prepare an Enduring Guardianship document, contact one of our Wills & Estates planning lawyers in Sydney.