Enduring Guardians

What is an Enduring Guardian?

An Enduring Guardian is a legal document you can write to appoint a decision-maker for personal and lifestyle decisions if you become unable to make them yourself. The person you appoint can look after decisions such as where you live, who can socialise with you, what activities you do and what services you receive.

The name and features of an Enduring Guardianship varies across the different Australian states and territories. For example, in some states, an Enduring Guardian may decide some medical or health matters as well as personal and lifestyle options. The person you appoint as your Enduring Guardian can only make the decisions that are allowed in your state or territory.

Your Enduring Guardian document will only come into effect if you lose decision-making capacity. You can change or cancel your document at any time as long as you still have capacity, which means you have control over the arrangements.

If someone becomes concerned about the way your Enduring Guardian is looking after your decisions, they can apply to your state or territory’s Civil and Administrative Tribunal to have the appointment reviewed.

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Why should you make an Enduring Guardian document?

Appointing an Enduring Guardian is an important step in safeguarding your rights and quality of life against the possibility of becoming unable to make your own decisions.

Losing decision-making capacity isn’t something that happens to everyone as they age. But if it does happen to you, who will decide where you live or what activities you do? Will it be someone you know and trust – someone who knows what you would want?

An Enduring Guardian document enables you to choose the best person to look after your decisions and to record how you would like your decisions made. It helps you keep as much control as possible over your future.

What about your financial or medical decisions?

Anywhere in Australia except the Northern Territory, you can appoint a financial decision-maker by making an Enduring Power of Attorney. (In the Northern Territory, it’s called an Advance Personal Plan).
In New South Wales, Tasmania and Western Australia, your Enduring Guardian document can authorise health and medical decisions as well as personal and lifestyle choices. You can also complete an Advance Care Directive (called an Advance Health Directive in Western Australia) to record your treatment preferences and instructions for your doctors and guardian(s) to follow.
In the ACT, Northern Territory, Queensland, South Australia and Victoria, your health and medical decisions are covered by other documents, such as an Enduring Power of Attorney or an Advance Care Directive. You may also have the option to record your treatment preferences and instructions in a separate document for your doctors and guardian(s) to follow.

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How do you make an Enduring Guardian document?

You can only make an Enduring Guardianship while you have decision-making capacity. That’s why it’s a great idea to make one now.

Your appointed guardian is required by law to act in your best interests and follow your instructions. Writing clear and detailed preferences will help them to do this. Consider getting legal or professional advice and help with making it to ensure it covers everything you want. Your state or territory’s Public Guardian or Public Advocate will have helpful information on their websites and may offer a service to help you make your Enduring Guardianship document (fees will apply).

To make your Enduring Guardian document, you should use the official form that’s available where you live. Read all the information provided with the form and think carefully about what you want to write. It can be helpful to read the form before you start filling it in and make notes about what you’ll need to write down.

You will need the full names and addresses of the guardians you’ve chosen. After you have completed your form, you’ll need to sign it in front of witnesses – check the instructions for who can witness your signature. Your appointed guardians will also need to sign their acceptance of the appointment. Follow the instructions in the form carefully, and ask someone for help if things aren’t clear.

In some states and territories, you may need to register the Enduring Guardian document for it to be legal and valid. Check your form for instructions about this. Otherwise, keep the document in a safe and secure place and tell your guardian(s), family members and any other relevant people where it is.

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How do you choose your Enduring Guardian?

When you choose your Enduring Guardian, think carefully about who would be best suited for the job. It should be someone you trust who knows you well and will respect your wishes and preferences.

The person appointed must be over 18 and have capacity. It’s often your spouse or partner, other close relative or a close friend. But if you don’t think they’re suited to the role, you can choose someone else.

If you have an Enduring Power of Attorney (or Advance Personal Plan in the Northern Territory), you may be able to appoint the same person as your attorney and your guardian, depending on what’s allowed by law where you live. Check the available information and if you’re not sure, seek advice.

Consider whether the person you want will be able to make good decisions for you. Are they willing to take on the job, and will they be available or is their life too full? Discussing the options with your family before you choose can help to avoid any difficulties later.

Before completing your forms, talk to the person you’d like to appoint. Make sure they understand the job and are happy to do it for you. It’s also important to talk with them about how you’d like your decisions to be made, to guide them if the time comes.