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What is an Appointment of Enduring Guardian, and should I have one?

Estate Planning is about more than just making a Will. Where a Will plans for the transference of your assets upon your death, Enduring Power of Attorney (EPOA) and Appointment of Enduring Guardian (AEG) documents plan for incapacity.

These documents provide peace of mind for you and your loved ones. It might help to think of it a bit like an insurance policy – hopefully you will never need them, but if you do, you (and your loved ones) will be very relieved that you have them in place.

What is an Appointment of Enduring Guardian?

An AEG is a legal document that gives a person (or persons) (guardian) the legal authority to make health and lifestyle decisions on your behalf if you lose capacity and are unable to make these decisions for yourself.

What decisions can my guardian make on my behalf?

Your guardian can make decisions about:

· Where you live,

· What health care you receive,

· What other personal services you receive,

· Consent to medical and dental treatment being carried out on you; and

· Refuse consent for treatment in some limited circumstances.

Who should I appoint as my guardian/s?

You can appoint any adult person who is willing to take on this role for you (e.g spouse, adult children, trusted friend or family member). You can appoint more than one person and have them act jointly, or jointly and severally. You should appoint someone that you trust implicitly and that you know will look after your best interests when you are at your most vulnerable. Remember that your guardian will be making health and lifestyle decisions on your behalf in consultation with your health care providers.

When does the power commence for AEG?

An AEG only ever comes into effect upon incapacity.

Frequently Asked Questions

What is incapacity?

We often think about incapacity in the context of old age dementia or Alzheimer’s disease, but legal incapacity can occur for a wide range of reasons that have nothing at all to do with age. Incapacity can occur suddenly and without warning, for example, as a result of acute illness, acquired brain injury from an accident, mental illness and so on. Capacity can also be fluid, meaning that you may lack capacity for a period of time (e.g if you were in a coma) and then re-gain capacity. If you lack capacity for any reason, at any point in time, you may need a substitute decision maker to step in and make important decisions on your behalf during this time.

Doesn’t my Next of Kin (NOK) just have these powers?

No. Your NOK does not have the same substitute decision-making powers that you appoint under an AEG. For example, your NOK cannot legally sign contacts for you to move into residential accommodation or full-time care, you would need an AEG for this.

What happens if I don’t have this document in place and I need it?

If you don’t have a valid AEG document in place and you lose capacity, an application will need to be made to NCAT or the Supreme Court of NSW to apply for a Guardianship Order to give someone the legal authority to make these decisions for you. Any person concerned about your well-being can make this application and they can be made by the hospital. NSW Trustee and Guardian (NSW TAG) are always part of these proceedings and if the Tribunal Member or Judge finds (based on the evidence) that there is no one suitable, or if there is a dispute in the family, NSW TAG are often appointed as Guardian. This means that the person/s you trust and would want to be your guardian will not necessarily be appointed. It can also be a very stressful process for you and your loved ones if an urgent application is required.

Can I change my mind?

Yes. You can revoke your AEG at any time as long as you still have capacity. If you have lost capacity and the AEG requires revoking or amending, an application must be made to NCAT or the Supreme Court of NSW.

When does and AEG end?

AEG documents become invalid when you pass away, and the executor of your Will then becomes your personal legal representative.

Do I really need both EPOA and AEG?

Yes. To properly plan for incapacity, you should have both an EPOA and AEG in place because they each have completely different functionalities that dovetail together to make sure that you have legally appointed substitute decision makers who can look after your best interests if you are unable to do so yourself.

Click here to learn more about Enduring Power of Attorney's (EPOA):

A folder titled "My Estate Planning Documents" and a document sitting on top of it titled "Appointment of Enduring Guardian"
My Estate Planning Document: Appointment of Enduring Guardian

This blog is for information purposes only and should not be relied upon as legal advice. You should obtain legal advice for your specific circumstances. ©Avid Law Pty Ltd. Liability limited by a Scheme approved under Professional Standards Legislation.

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