The Enduring Guardianship

Christina Wolfsbauer, Senior Associate and Peter Bobbin, Managing Principal at Argyle Lawyers

Introduction

Appointing an Enduring Guardian authorises a person (donee) to exercise certain functions in respect of the person who appointed the Enduring Guardian (donor). Appointment of the Enduring Guardian must be made by a written instrument in which all terms and conditions of the Enduring Guardianship are specified.

Why do I need an Enduring Guardian?

What distinguishes an Enduring Guardian from say, a guardian for a child, is that the appointment is only applicable for persons aged 18 years and over. It will be operative only in the event that the donor is unable to manage him/herself as a result of a losing legal capacity (often referred to as suffering ‘unsoundness of mind’).

An appointment of Enduring Guardian is effectively the appointment of a person to make decisions on your behalf relating to personal and health care matters if you are no longer able to make those decisions yourself. Such decisions may include things such as accommodation, medical or dental care, and what services you are to receive.

An Enduring Guardian is prohibited from making certain decisions, however, such as any decision that is against the law (for example euthanasia), making or altering your Will, consenting to medical or dental treatment if you yourself are objecting, or any special medical treatment.

An Enduring Guardian also cannot make decisions about your financial affairs. These decisions are governed by a separate document – an Enduring Power of Attorney.

It is also important to note that the appointment of an Enduring Guardian is governed by State-based legislation, similarly to an Enduring Power of Attorney. There are differences between States and Territories in Australia for both Enduring Guardians and Enduring Powers of Attorney and it may be necessary or appropriate to have documents in place in more than one State or Territory.

Consider the following example of Mr Brown and Mrs Brown.

Assume that one day Mr Brown drove home and was involved in a car accident. He was severely injured, both physically and mentally. As a result, Mr Brown sustained a traumatic brain injury and is rendered incapable of looking after himself.

Mrs Brown works full-time and wants to move Mr Brown to a nursing home so he will have professional care 24 hours a day. However, Mr Brown’s parents and brother disagree with Mrs Brown’s choice and believe that she, as Mr Brown’s wife, should be responsible for looking after Mr Brown.

His mother believes that Mr Brown should remain living in the marital home and asks Mrs Brown to reduce her work load to part-time so she can attend to Mr Brown.

The parents have offered to look after Mr Brown when Mrs Brown is at work. As Mr Brown’s parents are elderly, they believe they are not strong enough to look after Mr Brown 24 hours a day and so they have not asked that Mr Brown live with them.

In such case, who is to decide where Mr Brown is to live and what kind of care he is to receive?

The benefits of an Enduring Guardian

The problems which emerge in the preceding example could have easily been overcome by Mr Brown executing an Appointment of an Enduring Guardian. Doing so would have allowed Mr Brown to empower the person or persons of his choosing to make decisions regarding his care. Executing an Enduring Guardianship document is a clear message of Mr Brown’s wishes. This can help to prevent or reduce family conflicts that may arise in such circumstances.

If Mr Brown had executed an Appointment of Enduring Guardianship in Mrs Brown’s favour, she would be empowered to decide where Mr Brown was to live, what health care he should receive, any other services he should receive and consent to any medical or dental treatment he needed.

Furthermore, Mr Brown may have elected different persons to exercise different functions. For example, with respect to deciding where he should live, deciding what healthcare he should receive and giving consent to medical or dental treatment, Mr Brown could have nominated his parents jointly, and with respect to what other services he should receive he could have nominated Mrs Brown.

In this example the effect of appointing an Enduring Guardian/s would be to prevent or reduce family arguments as to Mr Brown’s welfare and to enable his welfare to be controlled by someone he knows and trusts. In such a scenario, it would be disastrous if a family not only had to deal with such a tragic accident, but also disagreed on various decisions regarding his welfare. Unfortunately, it happens all too often.

Peace of mind

An effective succession and estate plan should include an Appointment of an Enduring Guardian to prevent these or other problems and to properly protect your welfare, giving you peace of mind.

Originally published in EQUITY JUNE 2016