What is an enduring guardianship?
An enduring guardianship is a legal document in which you (‘the appointor’) appoint another person (‘the guardian’) to make personal and medical decisions for you.
An enduring guardianship must be made whilst you have mental capacity. If you lose mental capacity, an enduring guardianship cannot be signed. The time for making an enduring guardianship is when you are healthy, aware and still have the capacity to manage your personal and health affairs.
An enduring guardianship authorises your guardian to make these decisions for you if you are no longer able to make them for yourself. It will come into effect if you lose that ability. This could be due to an accident, illness or disability, such as dementia.
What does mental capacity mean?
The law requires that we have mental capacity when making certain decisions during our life, in order for them to be valid. This can be confirmed by a doctor. A person can be referred to a doctor if there is a dispute about that person’s mental capacity.
Having mental capacity means that we can:
- understand information given to us; and
- weigh up the information available to make a decision; and
- remember that information long enough to be able to make a decision; and
- communicate the decision to other people.
Requirements in appointing a guardian
There are certain conditions to appointing a guardian. These are:
- the guardian must be over the age of 18 years;
- the guardian cannot be involved in your medical care or treatment (i.e. your doctor);
- you cannot appoint the public guardian;
- you can appoint single or joint guardians.
The guardian's powers
There are many powers and duties that your guardian will have. For example a guardian can:
- consent to any health care (both medical and dental) that is in your best interests;
- withdraw consent to health care;
- make decisions as to what support services you have;
- sign documents related to your health care or personal care on your behalf;
- decide where you live either permanently or temporarily;
- decide with whom you live;
- decide whether you should work;
- apply restrictions to your visitors if required.
Your guardian cannot make financial or property decisions for you. See our Enduring Power of Attorney fact sheet for information about financial and property decisions.
It is important to choose a guardian carefully. Your guardian should be someone you trust and who knows your wishes. Your guardian should act in your best interests at all times and promote your dignity. Your guardian should also make sure you have as much freedom with your actions and decisions as possible. Your guardian should be someone who is decisive and is able to advocate clearly on your behalf to medical staff, care providers and to other members of your family.
Your guardian must exercise their power responsibly.
Can I appoint more than one guardian?
Yes. You can appoint two or more guardians. However, all guardians have to act jointly and cannot make decisions independently from the other guardians. Therefore, if you are appointing more than one guardian it is important that they will be able to co-operate with each other.
You can also appoint a person who is an ‘Alternative Guardian’ this person can act as your guardian when your first named guardian is absent or if they no longer have mental capacity themselves.
Can I provide conditions?
Yes. You can specify conditions or directions for your guardian on the Enduring Guardianship form. Examples of conditions could be where you live, the type of medical treatment you wish to receive, or whether you want life prolonging treatment or not. If you do no specify any conditions or directions, the guardian has what is known as ‘Full Guardianship’ and they can do everything a guardian can legally do.
When can my guardian consent to medical treatment?
Your guardian can only consent to medical or dental treatment for you when you are incapable of giving consent. You are considered incapable of giving consent when you are not able to understand the general nature and effect of the proposed treatment, or you are not able to indicate whether or not you agree to the proposed treatment.
Is my enduring guardianship legally valid once I have signed it?
To be legally valid and enforceable, the enduring guardianship must be registered by lodging it at a Service Tasmania outlet and paying the required fee. The Enduring Guardianship form can be found on the Guardianship and Administration Board website.
For more information go to the Guardianship and Administration Board website.
- Guardianship and Administration Act 1995