The Guardianship Act 1987 (NSW) makes it possible for you to appoint an enduring guardian. An enduring guardian is a substitute decision maker of your choice with legal authority to make health and lifestyle decisions on your behalf if needed. The type of decisions might include where you may live, the services you need, what health care you receive, or consenting to medical and dental treatment on your behalf.
An enduring guardian legally appointed by you should consider your views both past and present. Your enduring guardian should also consider the views of professionals and other people important in your life at the time then make decisions on your behalf should the need arise.
Your enduring guardian’s powers only come into effect and remain while you lack capacity to make decisions. The enduring nature of the power means that the guardian’s authority continues while you are incapacitated.
If you wish to appoint an enduring guardian you must sign a legal form of appointment.**
The person or people you appoint need to sign the same form in front of an eligible witness to show that they understand what the appointment means to be your enduring guardian. You don't all need to sign the same form at the same time and place, but, your signatures do need to be witnessed by an 'eligible' witness.
Depending on how many enduring guardians you appoint it may be necessary to alter the form of appointment to include all the witness certificates required.
An 'eligible witness' is an Australian legal practitioner, Registrar of the Local Court, overseas legal practitioner, or approved officer from the NSW Trustee & Guardian. Only these people may witness your signature and the signatures of the people you appoint.
Revoke appointment of enduring guardian(s)**: If you have changed your mind about your enduring guardian, including who should be in the role and what decision making areas they should have you can revoke the appointment using this form. You must have legal capacity and be witnessed when you sign the form. You must also notify the person, whose appointment you are revoking, in writing.
Resignation of appointment as enduring guardian or alternative enduring guardian**: An enduring guardian can resign at any time by giving written notice in this form to the person who appointed the enduring guardian. If the person who appointed the ensuring guardian has lost capacity, the enduring guardian can only resign with the approval of the Guardianship Tribunal.
** Both of these forms need to be witnessed by an Australian legal practitioner, Registrar of the Local Court, overseas legal practitioner, or approved officer from the NSW Trustee & Guardian.
Our forms are based on the Guardianship Regulation 2010 Schedule 1. All enduring guardianship forms must use the format in the Schedule. However, you can add details like extra certificates of witness, or details of joint or alternate guardians, if you need to.
Download our publication ‘Enduring Guardianship in NSW; your way to plan ahead’.
This website also has further information on capacity.
Contact us for further information.
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