Enduring Guardianship

What is Enduring Guardianship?

Enduring Guardianship allows you to appoint a person to make health and lifestyle decisions on your behalf if you lose the capacity to make your own decisions in the future. You may want to get independent legal advice before appointing an Enduring Guardian.

The person you appoint should be someone you can trust to make decisions in your best interests. The person you appoint must be over the age of 18 years. You can appoint more than one enduring guardian and an alternative guardian. An Enduring Guardianship appointment cannot be used for property or financial decisions. You should appoint an enduring power of attorney if you want a particular person to make these decisions.

A guardian can only consent to medical and dental treatment that will promote or maintain your health and well being, and cannot consent to treatment that you object to. You cannot appoint your guardian to make any decisions that are contrary to law. A guardian cannot make or alter your will on your behalf.

If you require assistance with a complex Enduring Guardianship appointment you will need to contact a solicitor.

Is it the same as an Advance Care Directive?

No, an Enduring Guardianship and an advance care directive are not the same thing, though they can be related. An Enduring Guardianship legally appoints someone to make personal and health-related decisions on your behalf if you become unable to do so. An advance directive, on the other hand, is a document that outlines your specific wishes regarding medical treatment and care should you become incapacitated

When does the Enduring Guardian start?

The appointment of your Enduring Guardian takes effect only if you lose the capacity to make your own personal or lifestyle decisions and remains in effect until you regain capacity or die. A person in need of a guardian means a person who because of a disability, is totally or partially incapable of making decisions.

Need more information?

There are many publications available. For more information:

• NSW Civil and Administrative Tribunal
• NSW Public Guardian
• Department of Ageing, Disability and Homecare
• Dept of Land and Property Information

Witnessing an Enduring Guardianship

An eligible witness must witness an appointment of an Enduring Guardian. Persons who may witness include:

• an Australian legal practitioner
• a registrar of the local court – contact the local court to make an appointment if you want a registrar to witness
• an overseas-registered foreign lawyer
• an approved employee of NSW Trustee and Guardian or the Office of the Public Guardian.

The witness is required to do certain things before signing, including:

• explain the effect of the appointment to you
• certify that you appear to understand the effect of the appointment
• witness each person signing.

The person you appoint as your guardian will then need to accept the appointment by signing the form and having it witnessed. If you have made an appointment at the local court for a registrar to witness an enduring guardianship, you will need to bring suitable identification for the registrar to confirm who you are.

Registrar Appointment Required

f you need enduring guardianship document witnessed, the registrar at the local court is an authorised witness, however, can only witness documents in some circumstances. You will need to make an appointment and complete the form before you attend, the registrar cannot complete the forms,give you legal advice or witness a complex clause. The Registrar will undertake capacity testing before witnessing the documents.

If the enduring guardianship has complex clauses or there are concerns around capacity,  you may be advised that it cannot be witnessed and referred for legal advice.

Proof of Identity

If you have made an appointment at the local court for a registrar to witness an enduring guardianship you will need to bring suitable identification for the registrar to confirm who you are.

Do you need to register the Enduring  Guardianship?

No. However, if you want to, you can register an enduring guardianship appointment in the General Register of Deeds at Department of Land and Property Information for safe keeping. There is a registration fee payable.

Where to get forms

Appointment of Enduring Guardian form can be obtained from your local post office or by contacting your Local NSW Court Registry. 

For information pertaining to ‘Appointment of Enduring Guardian’ see NSW Public Trustee and Guardian

Need more information?

There are many publications available. For more information refer to:

• NSW Government
• NSW Land Registry Services
• NSW Trustee and Guardian
• Department of Ageing, Disability and Homecare