We're here to assist you in appointing an enduring guardian.
An Enduring Guardian is a person you appoint to make medical and personal lifestyle decisions on your behalf if you are not capable of doing this yourself.
We can advise you about the types of decisions that you can authorise your enduring guardian to make.
Once the document has been prepared and signed by you we can also help you to make arrangements for your guardian to accept the appointment.
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What is it?
An Appointment of Enduring Guardian is a legal document in which you appoint a person to make personal lifestyle decisions on your behalf when you are not capable of doing this yourself.
What type of decisions will my Guardian make?
Usually your Enduring Guardian will make decisions about where you will live, for example in a hostel or nursing home, what health care you will receive, who will be your treating doctor, what other personal services you may receive eg. home nursing support and what type of medical treatments you will receive. Certain medical treatment can only be approved by The Guardianship Tribunal and your Enduring Guardian cannot override your wishes in refusing medical treatment (without the approval of the Tribunal).
Why appoint an Enduring Guardian?
Obviously as a matter of preference we would like to decide certain issues for ourselves eg. where we live, which doctor we go to, what medical treatment we receive, and what other lifestyle services we receive. Sometimes it is not possible for us to make these decisions. We can become sick, be injured in an accident, suffer a stroke or have a condition which makes it impossible for us to make informed decisions on our own behalf.
Why do I need it now?
Many people think that if they are ill or injured, then the appointment of an Enduring Guardian can take place at that time. Unfortunately, that is not possible. If you have already lost the capacity to make decisions about your own welfare and medical treatment, you have also lost the legal capacity to make a decision to appoint an Enduring Guardian.
What happens if I do not appoint an Enduring Guardian?
If you do not appoint a Guardian and circumstances arise where one is needed, it would be necessary for someone to make application under the Guardianship Act to be appointed as your Guardian. The Guardianship Tribunal might agree to this appointment or alternatively, might appoint the Protective Commissioner (a Government Official) to act as your Guardian. The application to the Guardianship Tribunal is more complicated and potentially more costly for you than making your own appointment now. The Protective Commission will charge a fee for administering your affairs.
What can’t an Enduring Guardian do?
A Enduring Guardian cannot make a will for you, vote on your behalf, consent to marriage, manage your finances, transfer your property, or override your objections to medical treatment.
Who should I appoint?
The person you appoint must be over 18 years of age and should be someone you trust and who has an interest in making decisions that are in your best interests if you are not capable of making decisions yourself. Your Enduring Guardian must act within the law, and within the principles of the Guardianship Act. Your Enduring Guardian cannot be a person providing treatment or paid care to you at the time of the appointment.
How do I appoint an Enduring Guardian?
The form for appointing an Enduring Guardian can be drawn up by us. The Guardianship Act prescribes certain specific information that must be contained within the form for it to be valid. Additional information can be inserted eg. you can choose what decisions you want your Enduring Guardian to make and give directions to your Enduring Guardian as to how you wish them to perform the functions they are entitled to do under the appointment.
When does the appointment of a Guardian take effect?
The appointment of Guardianship only takes effect when you are unable to make your own personal or lifestyle decisions. It will be up to your Enduring Guardian to consult with a medical practitioner about your capacity to make decisions before taking any steps on your behalf.
At the appropriate time your Enduring Guardian would approach your doctor for a certificate under the Guardianship Act to the effect that you are totally or partially incapable of managing your person. The certificate along with a copy of the appointment would provide evidence to others of the fact that a Guardian is then entitled to make decisions on your behalf.
How long does an Enduring Guardianship continue?
The appointment of an Enduring Guardianship commences when you lose capacity and continues until you die or the appointment is revoked.
Should everyone consider having a Guardian?
Anyone who has any risk of suffering a disability, injury or illness should seriously consider appointing a Guardian. Once you pass the age of 40 you are in a higher risk age bracket for strokes, heart attacks, etc. These often occur without warning. The existence at that time of an "Appointment of Enduring Guardian" will make the day to day management of your lifestyle and care a lot easier for your family.
Is An Enduring Guardian different to a Power of Attorney?
A Power of Attorney is someone who manages your financial affairs, property and assets. The Enduring Guardian is the person who manages your medical and personal issues. Most of us should consider appointing both.
What to do next
Contact our office for an appointment to see one of our solicitors who will discus the issues involved and prepare the Appointment of your Enduring Guardian.
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