What is it?
Where it is permitted under State/Territory law, an enduring power of guardianship is a legal document. By signing it, you authorise a person to make personal and lifestyle decisions for you.
This type of power of attorney is often used to plan for the future. There is always the possibility that you won't be able to make decisions because of age, illness or accident.
If you have appointed a guardian, that person will have the authority to decide about personal issues, such as where you live. If you haven't appointed an enduring guardian, it may be necessary to apply to a local Court/Tribunal for the appointment of a substitute lifestyle decision-maker.
This will not necessarily be someone you would have chosen, and may be a person from a Government department. Note that you may also appoint a person to be an alternative enduring guardian.
An alternative enduring guardian takes the place of, and has the same powers as, the original enduring guardian if that person is incapable of acting as the enduring guardian or is absent for a period.
What can my guardian do?
Your guardian can only make decisions for you IF you become mentally incompetent.
If this occurs, your guardian can make decisions about personal and lifestyle issues. The extent of these powers depends on what you have written in the enduring power of guardianship form. For example, it could include:
- all the powers of a guardian; or
- specific powers, such as where you live, your health care etc.
Where it is allowed, you can specify what types of decisions you would want your guardian to make.
Does it last forever?
An enduring power of guardianship will last until:
- you sign a new enduring power of guardianship;
- you cancel it (you must be mentally competent to do this);
- you die; or
- it is cancelled by a local Court/Tribunal.
What happens if I don't have one?
If you do not have an enduring power of guardianship and you lose capacity to make personal and lifestyle decisions, a guardian may be appointed by a Tribunal.
The appointed guardian might be a member of your family, a friend, or an independent guardian from a Government Department (e.g. the Office of the Public Guardian in NSW or the Office of the Public Advocate in Victoria).
The Tribunal may appoint an independent Government guardian even if family members are willing and able to act, especially if there is conflict within the family. You should avoid this outcome.
Last Updated – February 2014
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