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In summary, many people will never need to appoint an Enduring Guardian. This is because they either have a cohesive and formal family structure and the medical people dealing with them see no problem in dealing with the family. However we live in a world where family breakdowns are more common and medical people are more nervous of being sued. The formal appointment of an Enduring Guardian will go a long way to ease potential conflicts.

The degree of difficulty will depend on the medical people you are dealing with and the persons circumstances. In theory there should not be a problem in most cases.

The Guardianship Act says that when a person cannot make a medical decision for themselves then the decision can be made by the ‘person responsible’ (except in cases of sterilisation or unusual medical matters). The person responsible is defined in a pecking order as:

• the guardian (appointed by an Enduring Guardianship appointment or Guardianship Tribunal) (or if none then…)
• the person’s spouse (must have a close and continuing relationshp and not be under Guardianship order themself) (or if none then….)
• the person’s carer (must not be paid for such care except by way of a carer’s pension). If the person goes into a nursing home or similar, the person who was the carer before going in continues and the nursing home or any staff do not take over (if none then…)
• a close friend or relative of the person.

The issues that arise appear to be:

• spouse – who is the spouse when a person has a legal spouse and a de-facto spouse;
• what is the status of children when there is a de-facto spouse or a separation from the legal spouse;
• when a person is being cared for by only one of their children or by a non-child, that person can override the wishes of the (non-carer) children – will that cause conflict?
• what if there are several ‘close friend(s) or relative(s) and they have different views on the treatment regime?
• what if the doctor or nursing home need a signed consent – who will they consider has the capacity to give that consent – will they want to get involved in a dispute as to who has the authority to sign and make decisions such as turning off life support?

Enduring guardianship ends when you die, or when you revoke the appointment. A joint enduring guardianship will also end if one of the guardians dies, resigns or becomes incapacitated unless you provide otherwise in the form. An enduring guardianship appointment is suspended if the Guardianship Tribunal makes a guardianship order. The Tribunal may revoke the appointment.

If the person you have appointed dies, resigns or becomes incapacitated, the Guardianship Tribunal can, in limited circumstances, order another person to be appointed as enduring guardian on your behalf. Someone will need to lodge an application on your behalf.

Anyone with a genuine concern for your welfare can apply to the Guardianship Tribunal for a review of the appointment if they feel that your enduring guardian is not making appropriate decisions on your behalf. The Tribunal can revoke the appointment or confirm it. It may also change the functions in the appointment or make a guardianship order.

The Tribunal does not supervise enduring guardians. It will act only if it receives an application from a concerned person or receives information which leads it to review the enduring guardian appointment.

If you marry after appointing an enduring guardian, the appointment is automatically revoked or cancelled. If you wish to reappoint the enduring guardian, you need to complete a new application form reappointing the person.

While you are capable of making your own decisions, you can revoke the appointment of an enduring guardian. To do this you need to complete a Revocation of Appointment of Enduring Guardian form. This form will also need to be witnessed by an eligible witness. You have to advise the enduring guardian in writing that their appointment has been revoked.

You can appoint a new person as your enduring guardian, or change the functions or directions given to your enduring guardian. You will need to complete a new form of appointment to achieve any of these things.

Only the Guardianship Tribunal can make changes to the appointment if you have lost the capacity to do this for yourself.

The appointment of your enduring guardian takes effect only if you become unable to make your own personal or lifestyle decisions. Your enduring guardian may wish to seek the opinion of a medical practitioner about your capacity to make decisions before acting on your behalf.

If there is any doubt about your capacity to make decisions, a medical practitioner may have to assess your capacity.

It is a good idea to keep the appointment form in a safe place. Tell someone else where it is. Give a copy to your enduring guardian. You may wish to give copies to significant people in your life (eg your doctor). We usually hold the original or a copy for our clients.

If you are competent to make an enduring guardianship application but you are not able to sign the form, an eligible signer can sign for you. An eligible signer must be over 18 and cannot be the enduring guardian or a witness. You must be present when the eligible signer signs on your behalf.

A witness must be a NSW barrister, a NSW solicitor, a clerk of the Local Court, or an interstate legal practitioner. Every signature on the form must be witnessed. The different signatures can be witnessed by different people at different times and places. For example, your signature can be witnessed in NSW and the enduring guardian’s signature can be witnessed in another state.