An enduring guardianship enables you to appoint a substitute decision maker to make personal, health or lifestyle decisions in the event that you are unable to make your own decisions because of an accident, illness or disability.
An enduring guardian can only be appointed while you have capacity. Capacity means that you have the ability to make decisions for yourself. A person has capacity when they can understand information and choices presented to them and are able to weigh up the information to arrive at a decision and can communicate their decision. You must appointment your guardian whilst you still have capacity. The enduring guardianship will only take effect in the event that you lose capacity.
If you lose capacity and have not appointed an enduring guardian, anyone who has a genuine concern for your wellbeing can apply to a tribunal to appoint a guardian. The tribunal will hold a guardianship hearing and where possible appoint a family member or friend as a guardian. This can be a stressful process for family members.
If there is no one suitable to be appointed as guardian or where there is significant conflict over who should be appointed as guardian, the tribunal can appoint a Public Guardian. The Public Guardian will then make decisions for you regarding matters such as accommodation, medical treatment and dental treatment.
Most people would prefer to choose their own decision-maker rather than leave it up to a tribunal. After all, the tribunal does not know who you would have chosen as your guardian and may choose someone who would not have been your first choice. By choosing your own decision maker, you can select someone who knows you well and who can take into account your thoughts and opinions, both past and present. As a result, it is advisable to consult a lawyer and prepare the necessary form of appointment before capacity becomes an issue.
In order to appoint an enduring guardian, it is necessary to sign a form of appointment. This document must also be appropriately witnessed. The person you appoint as your enduring guardian must be someone you trust to make decisions in your best interests and must be 18 years or older. They must be willing and able to act as guardian, and must sign the form in order to accept the appointment. It is possible to appoint more than one person as your enduring guardian – either by having them act jointly, by authorising them to make different types of decisions, or by designating alternates.
With an enduring guardianship, you choose the areas you want your enduring guardian to have a decision-making ability. For instance, you can authorise your enduring guardian to make decisions about:
- where you live;
- what medical or dental treatment you will receive;
- what personal services you should have to support and assist you; and
- the people with whom you should have contact.
You can also give your enduring guardian directions about how they must exercise their decision-making power.
There are some functions that an enduring guardian cannot perform such as making a will for you, voting on your behalf, managing your finances or overriding any of your stated objections to medical treatment.