What is an Appointment of Enduring Guardian?
An Appointment of Enduring Guardian (Appointment) is a legal document that authorises one or more persons to make health and lifestyle decisions on your behalf. Appointments are governed by the Guardianship Act 1987 (Act). Under the Act, an appointment only has effect during such period as the appointor is a person in need of a guardian. This means a person who, because of a disability, is totally or partially incapable of managing his or her person.
Why is it important?
An Appointment of Enduring Guardian is an important life planning tool. It is as important as a Will. It operates during your lifetime while a Will only operates upon your passing. You must have the requisite mental capacity to make an Appointment of Enduring Guardian. If you no longer have the capacity to understand the nature of effects of the document, then it is too late to give instructions to prepare one. That is why it is important to make an Appointment of Enduring Guardian before it is too late. It is also important to remember that the appointment only concerns your health and lifestyle affairs. If you want to authorise one or more persons in respect of making real estate and financial decisions on your behalf when you are no longer capable, then you should look at appointing an attorney pursuant to a Power of Attorney.
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Who should you appoint as your guardian?
The person you appoint as your guardian should be someone that you trust implicitly to act in your best interests. It is also prudent that you appoint a substitute guardian if your guardian is unwilling to act or is no longer capable of acting as a guardian. A person is not eligible to be an enduring guardian unless he or she is 18 years of age and over.
Further, a person is not eligible to be an enduring guardian if the person (in a professional or administrative capacity) is directly or indirectly involved or responsible for the provision of medical services (whether provided in a hospital, at home or otherwise), accommodation services or any other services to support the person making the appointment in his or her activities of daily living or if the person is the spouse, parent, child, brother or sister of such a person.
However, if a person is validly appointed as an enduring guardian and subsequently becomes responsible for the provision of medical services, accommodation services or other services referred to above, for fee or reward, the appointment does not lapse.
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