Who should I appoint as my Enduring Guardian?

Choosing an Enduring Guardian is a personal decision and depends on your individual circumstances. However, there are a few key considerations that can guide your decision:

1. Trust: You should appoint someone you trust implicitly to make health and lifestyle decisions that are in in your best interest.
2. Understanding: The person should understand your values, beliefs, and wishes. They should be willing to respect and carry out your wishes even if they may not agree with them.
3. Dedication: The person should be able to dedicate their time to act as your Guardian. It would be difficult for a person to be your Guardian if they are busy with other family and work commitments.
4. Age and Health: Consider the age and health of the person you are appointing. It may be better to appoint someone who is likely to outlive you and who is in good health.
5. Location: It may be practical to appoint someone who lives close to you or at least in the same state or territory be your Guardian so that they can act immediately, particularly if an emergency arises.
6. Relationship with others: Consider nature of the person’s relationship with other important people in your life. If the person you appoint has a good relationship with these people, it may make decision-making easier.

Can I appoint more than one Guardian?

Yes, you can appoint more than one Guardian. There are three ways in which multiple Guardians can be appointed:

1. Jointly: All of the Guardians must make decisions together and they must agree on all decisions made. If one of the Guardians is unable or unwilling to act then the Enduring Guardian document may become invalid in its entirety unless a substitute Guardian has been appointed.
2. Severally: Each Guardian is able to independently of the other Guardians. This means that each Guardian can act on their own without needing to consult the other Guardians. If one or more of the Guardians become unable to or unwilling to act, the remaining Guardian (s) can still continue to act and the Enduring Guardianship document can continue to operate. This can be useful if one guardian is not available to make a decision when required.
3. Jointly and severally: The Guardians can make decisions either together or separately. For example, all of the Guardians could make all decisions together concerning the Appointor’s medical treatment but the Guardians would individually make decisions regarding the Appointor’s personal services such as arranging appointments for haircuts. If one or more of the Guardians become unable to or unwilling to act, the remaining Guardians (s) can still continue to act and the Enduring Guardian document can continue to operate.

When appointing more than one Guardian, it's important to consider the dynamics between the individuals and whether they would be able to work together effectively, otherwise this could potentially lead to disagreements or conflicts between them, which could complicate the decision-making process.

What kinds of decisions can be made by an Enduring Guardian?

The types of decisions an Enduring Guardian can make on your behalf can include but are not limited to:

1. Healthcare decisions: This includes decisions about medical and dental treatment, including consent to or refusal of medical and dental treatment. It can also include decisions about whether you should receive palliative care and life-sustaining measures in certain circumstances.
2. Accommodation decisions: An Enduring Guardian can decide where the person should live, for example, whether they should stay in their own home, move into a residential aged care facility, or live with family.
3. Services decisions: This can include decisions about the types of services the person needs, such as home care services, meal delivery services, or other types of support services.
4. Personal decisions: This can include decisions about personal matters such as dress, diet, and daily routine.

What decisions cannot be made by an Enduring Guardian?

There are certain decisions that an Enduring Guardian cannot make, including:

1. Financial Decisions: An Enduring Guardian cannot make decisions about a person’s property and money. Such financial decisions are typically made by a person appointed under an Enduring Power of Attorney.
2. Consent to Marriage or Divorce: An Enduring Guardian cannot consent to a marriage or a divorce on behalf of the appointor.
3. Adoption: An Enduring Guardian cannot make decisions about the adoption of children.
4. Voting on Behalf of the Appointor: An Enduring Guardian cannot vote on behalf of the appointor in elections.
5. Making a Will: An Enduring Guardian cannot make or alter a will on behalf of the appointor.
6. Make funeral decisions on behalf of the appointer:  A Guardian cannot make decisions regarding how the body of the appointer is to be dealt with after the appointer dies. An Enduring Guardianship document only operates during the lifetime of the appointer in which a Guardian is to make health and lifestyle decisions on behalf of the appointer whilst they are alive.

A person generally has the right to decide for themselves what happens to their body after they die including whether they wish to be buried or cremated and whether they wish to have a funeral service and how such a service is to be conducted. These wishes are usually documented in their Will and are managed by a person called the Executor and Trustee.

7. Decisions about Assisted Reproductive Technology: An Enduring Guardian cannot make decisions about the use of assisted reproductive technology on behalf of the appointor.
8. Decisions about Experimental Health Care: An Enduring Guardian cannot consent to experimental health care or clinical trials on behalf of the appointor, unless the Guardian has been specifically authorised to do so in the appointment.
9. Decisions about Special Medical Treatments: An Enduring Guardian cannot make decisions about certain special medical treatments, such as sterilisation or termination of pregnancy, unless they have been specifically authorised to do so in the appointment.

What are the obligations of an Enduring Guardian?

An Enduring Guardian has the following obligations:

1. Always act in the best interests of the appointor: This includes promoting the person's wellbeing and ensuring their needs are met.
2. Acting within the scope of their authority: The Enduring Guardian can only make decisions that they have been specifically authorised to make in the appointment document.
3. Avoiding conflicts of interest: The Enduring Guardian must avoid situations where there is a conflict, or a potential conflict, between their duty to the person who appointed them and their own personal interests.
4.  Keeping records: The Enduring Guardian should keep records of the decisions they make on behalf of the person who appointed them.
5. Respecting the person's views and wishes: If the person who appointed the Enduring Guardian has expressed specific views and wishes or instructions, either verbally or in writing, the Enduring Guardian should take their views and wishes into account and ensuring the person’s freedom of decision and action is restricted as little as possible.
6. Consulting with others: The Enduring Guardian should consult with other people who are involved in the care of the person who appointed them, such as doctors, nurses, social workers, and family members.
7. Respecting the person's privacy: The Enduring Guardian should respect the privacy of the person who appointed them and only disclose personal information if it is necessary to carry out their role.

Any information on this website is general in nature and should not be taken as personal legal advice. We recommend that you speak to a lawyer about your personal circumstances.

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