Enduring Guardian

Note: the law has changed since 1 September 2015

There are two certainties in life, death and taxes but unfortunately we do not have a crystal ball to predict whether we will suffer dementia eg Alzheimer’s, or simply lose the capacity to look after ourselves. Appointing a Guardian can provide you with peace of mind knowing there is someone looking after your needs.

What is an Enduring Guardian?

An Enduring Guardian is a legal document which allows you (the Donor) to appoint a person (the Guardian) to make personal and lifestyle decisions on your behalf if or when you are incapable of making them for yourself.

What decisions can my Guardian make?

Your Guardian can make any lifestyle decisions which you are able to make on your own behalf. They can decide where you live, how your healthcare is maintained, whether you can work and who can visit you.

Your Guardian also has certain responsibilities; they must take into account any wishes you have expressed, they must act in your best interests and where possible make the same decision that you would have made.

When appointing your Guardian you have the ability to restrict or limit the powers of your Guardian. You can also include wishes you would like your Guardian to take into account when they are making decisions on your behalf.

In relation to healthcare decisions your Guardian may consent to medical procedures but he or she cannot refuse the consent for a medical procedure. Additionally, just like a person appointed under a Medical Power of Attorney our Guardian cannot consent to treatments which could lead to your infertility, the termination of a pregnancy or the removal of tissue for transplantation.

Your Guardian also does not have the authority to make financial decisions on your behalf.

Can you set limits or conditions?

The Guardian and Administration Act 1986 (Vic) regulates what your Guardian can and cannot do on your behalf, however you may limit, restrict or increase the decision making power of your Guardian. For example you can include a requirement for your Guardian to consult a particular person before changing your accommodation or you may choose to include a wish to have in-home-care rather than placed into a nursing home.

Who should I appoint as my Guardian?

You can appoint any person who is over 18 years of age and has the capacity to act. This person however, must agree to their appointment as your Guardian.

This person should be someone you trust will make the right decisions for you, someone who will respect your wishes and will follow them to the best of their ability.

You may also appoint an Alternative Guardian should your first Guardian be unable or unwilling to act.

Why should I give someone this power?

You should consider appointing someone as your Guardian for the following reasons:

  1. Reassurance – To ensure there is someone your trust making decisions regarding your wellbeing. For example deciding where you live or ensuring you are fed and clothed or that you receive medical treatment as required.
  2. Choice – An accident or unexpected illness may render you incapable of looking after yourself. If you have not appointed someone to act on your behalf, then the Victorian Civil and Administrative Tribunal (VCAT) will appoint someone to act as your Guardian. The person VCAT appoints may not be someone you would have appointed if you had the choice.
  3. Peace of Mind – If you elect to appoint a Guardian whilst you have the mental capacity to do so, you can decide who and how you will be looked after when you are no longer capable of making lifestyle decisions for yourself. Ensuring that the person making decisions on your behalf is someone you trust and who will fulfil your wishes.

You are in control – You have the ability to limit your Guardian’s decision making powers or set conditions for your Guardian. This power is removed from you once you lose mental capacity.

Contact us to arrange a chat with one of our legal professionals. It doesn’t hurt to ask.