Will Lawyer BLOG

Appointment Of Enduring Guardian - The power of having a Guardian

An Appointment of Enduring Guardian is a legal document you can use to appoint one or more people (your Guardian/s) to make health and lifestyle decisions for you in the event that you are unable to make them yourself. 

In this document you can include what is known as an “Advanced Care Directive” for end of life decisions (some people refer to this as a “living Will” or a “non resuscitation clause”) and directions about whether or not you want to nominate for Organ Donation.

You can nominate more than one Guardian.  Usually a Husband and Wife will appoint each other as the primary Guardian and then nominate one or more of their children, or other trusted persons, to be their substitute Guardian/s if the first nominated person ‘vacates office’. A Guardian vacates office if the Guardian dies, resigns, or loses mental capacity. At Will Lawyers Central Coast, we are one of the leading Will Lawyers, who can assist with all your enquiries related to the appointment of an enduring guardian, rules, forms & costs involved. Call us for an informative consultation.

Rules if more than one Guardian is appointed

If more than one Guardian is nominated, then depending on levels of trust and practical matters, such as the locations, work hours and commitments of each of those Guardians, then you will need to decide how your Guardians are to be appointed.  There are a few options for this:

  1. Jointly which means your Guardians must all act together; or
  2. Jointly and severally which means your Guardians may act individually, or together with the other Guardians if they choose.

To make an Appointment of Enduring Guardian, in most circumstances, we will require 2 appointments with you.  You will need to have an initial appointment with your Solicitor to provide your instructions.  You will then need a follow-up appointment to sign the Appointment of Enduring Guardian prepared for you.

The Guardians you have appointed will also need to make appointments with the Solicitors (or, in the alternative, attend the Registrar of their Local Court) to have the document explained to them and to accept their appointment on the document.  The document can be sent to them to sign, however, please note that the Appointment of Enduring Guardian will require a prescribed witness to explain the document to them, such as a Solicitor or Registrar.

Letter OF Capacity Before Making your Apointment OF Enduring Guardian

We will need to ensure when you are making your Appointment of Enduring Guardian that you have capacity to understand what the document is to be able to –

(a) Give reasoned instructions to make the document; and

(b)  Be able to sign the document. 

If there is doubt as to your capacity, a Letter of Capacity should be obtained from your treating Doctor/s to say whether or not, in their medical opinion, you have the capacity to make the document.  This letter should be taken to the appointment with you and handed to your Solicitor to keep on their file.  Please note it is then the decision of the Lawyer as to whether they believe you have capacity to be able to go through with making the document. For more details conversation regarding the Appointment of Enduring guardian Call our team of expert Will Lawyers.


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