Elder Law Guardianship Agreements for NSW Seniors - Consultation & Advice

Enduring Guardianship

An Enduring Guardianship appoints one or more persons of your choosing to make lifestyle or personal decisions on your behalf, in the event that you lose the capacity to make these types of decisions yourself. These can include decisions about where you live and the type of medical treatment you receive, for example.

Our estates planning lawyers can guide and advise you in the important area of making an enduring guardianship appointment.

Elder Laws in NSW for Senior Citizens

Should you wish to limit the types of decisions your guardian can make for example, or provide directions about how they should enact their responsibilities, we can incorporate these intentions into the enduring guardianship appointment.

Enduring Guardianship Agreements in NSW

When we get older, our declining health sometimes calls for unexpected challenges. There are many “what-ifs” that need to be planned for, so our best interests are protected and maintained. Our legal team want the elderly to have the peace of mind that they can retire with comfort, dignity, grace and compassion. You can safeguard your future by putting measures in place while you still have soundness of mind to do so.

We understand that laws that govern the elderly are sometimes hard to talk about. That is why engaging the services of our expert legal team at Joseph Trimarchi & Associates, will ensure that your transition into your senior years is as seamless and stress free as possible – for both you, and your family.

Why appoint an Enduring Guardian?

An Enduring Guardian is a person whom you appoint to make decisions when you’re no longer able to do so. It is different to a Power of Attorney as the decisions the Enduring Guardian can make, relate to your living arrangements, lifestyle and medical treatment.

For this reason, appointing an Enduring Guardian serves to prepare for unforeseen circumstances, like injuries or illness, which may prevent you from making your own lifestyle decisions.

What happens if I don’t appoint an Enduring Guardian and I become incapacitated?

If you have not appointed an Enduring Guardian and you become incapacitated, one of your family members may apply to the Guardianship Tribunal to officially become your Guardian. Therefore, if you have previously executed Enduring Guardianship documents, your family will be spared the hassle and red tape of the Tribunal Application process. You will also have the peace of mind that someone close to you whom you trust, will not be delayed or prevented from making important decisions on your behalf.

Who can act as a Guardian In New South Wales?

A Guardian is someone you choose to represent your interests. Your Guardian can be a family member, a close friend or any other person you believe has a genuine interest in your welfare. This person must be over 18 years old and cannot be bankrupt. It is also important to note that the person appointed as Guardian, is NOT a paid carer and cannot be your doctor. It is common for the Guardian to be a spouse or a child, however, you are given the freedom to choose who to appoint in accordance with the law.

Also, in circumstances where no appropriate Guardian can be found, an Adult Guardian may be appointed. The Adult Guardian is a public servant who is assigned the role to protect the rights and interests of adults who have lost capacity to make their own decisions due to disability or illness. Generally, an Adult Guardian is only appointed if there is no-one else more suitable to step into the role.

What decisions can the Enduring Guardian make?

While you have soundness of mind, you are able to decide the authority the Enduring Guardian can have over certain decisions. For example, you may wish to limit the Guardian’s authority relating to decisions on where you will live in the future. You can also give the Guardian instructions in respect of certain decisions that may arise. As the legalities can be complex, our team at Joseph Trimarchi & Associates, will thoroughly and carefully explain your options and entitlements.

It is important to note that there are certain decisions which your Enduring Guardian CANNOT make for you. Some of these decisions relate to;

  • your Will
  • consenting to a marriage or adoption
  • voting on your behalf
  • appointing someone else as your Enduring Guardian
  • financial or property matters

What are the common lifestyle decisions a Guardian has authority over for New South Wales residents?

If authorised, a Guardian can make decisions such as;

  • where you will live
  • the support services you will receive
  • persons with whom you will have contact with or visit
  • which doctor you will see
  • general health care matters, including medical and dental procedures
  • security and safety to prevent potential harm

Can I appoint more than one person as my Enduring Guardian?

Yes, it is possible to choose more than one Guardian. You can also decide whether you want them to act jointly or severally or both jointly and severally. Our legal team will explain the implications here. The choices to act jointly or severally generally refer to how decisions are made and what happens if one Guardian becomes incapacitated and can no longer act on your behalf.

What is ‘capacity’?

To make an Enduring Guardianship appointment, you must be an adult capable of making your own personal and financial decisions. Having the capacity to make decisions means that you can;

  • understand the nature and effect of a decision
  • voluntarily and freely make those decisions
  • communicate the decisions that have been made in some form
  • understand the contents of the document and the consequences of preparing the document
  • understand that the power will begin once you have lost capacity

When does the Enduring Guardianship commence and finish?

The Enduring Guardian’s appointment WILL begin when (if ever) you have lost capacity to make decisions for yourself. In this respect it is different to a Power of Attorney (POA), who can make decisions on your behalf, EVEN if you are of sound mind. For example, if you went overseas, you could authorise your POA to make decisions in relation to the sale of your property.

The Enduring Guardianship is designed to assist in your long term welfare after you lose capacity to make reasonable decisions. The Guardianship authority will cease when you die, or if you revoke the appointment while you’re still of sound mind.

Why isn’t a Power of Attorney good enough by itself?

The roles of a POA and Enduring Guardian are different. While a POA lets your Attorney manage your finances or property, it cannot authorise someone else to make personal or lifestyle decisions for you. In this respect an Attorney will not be able to authorise medical treatment including any important medical procedures you may need.

How do I appoint an Enduring Guardian?

Our team at Joseph Trimarchi & Associates are able to prepare the requisite legal document and explain it to you and your nominated Enduring Guardian(s). You and your Guardian(s) will both need to sign it. We recommend for people to do this now while you still have the capacity to understand the nature and implications of the document.

We are able to keep the document here in our safe, together with your Will and Power of Attorney papers. We will also provide you with a copy for your own personal records.

If you wish to learn more about the benefits of appointing an Enduring Guardian or any other Elder Law inquiry, please contact us here.



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