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Enduring Powers of Guardianship

 

 

An Enduring Power of Guardianship (EPG) is a legal document enabling you (the appointor) to appoint a person of your choice to make personal, lifestyle and treatment decisions on your behalf on loss of the ability to make these decisions for yourself because of an incapacity, illness or injury.  This person (the appointee) becomes your Enduring Guardian.  An Enduring Power of Guardianship cannot be used to appoint someone to make property and financial decisions. If you want someone to manage your financial affairs you should make an Enduring Power of Attorney (EPA).

Why appoint an Enduring Guardian?

By appointing an Enduring Guardian you give a person you know and trust the authority to make personal, lifestyle and treatment decisions on your behalf, if you become unable to do so in the future due to a decision-making disability.  When choosing an Enduring Guardian, the Public Advocate recommends you give careful consideration to the following questions:

  • Is the person trustworthy and likely to always act in your best interests?
  • Is the person willing to take on the responsibilities of the role and are they aware of your personal beliefs and lifestyle preferences?
  • Will the person be readily available to make decisions as required?
  • Could the choice of Enduring Guardian cause conflict within your family?  If so, is there someone else more suitable for the role

Consulting family members to ensure they are aware of your wishes is recommended as it may help avoid potential difficulties if/when your Enduring Power of Guardianship comes into effect.  You can appoint a sole Enduring Guardian (one person) or joint Enduring Guardians (more than one person).  It is important to note however, that joint Enduring Guardians must always make decisions together and agree on any decision they make.  You can also appoint a substitute Enduring Guardian to act in certain circumstances, for example if your Enduring Guardian is not available.

When does an EPG come into operation?

An Enduring Power of Guardianship comes into effect only if you (the appointor) are no longer able to make reasonable judgements about your personal, lifestyle or treatment matters.  Any decisions made by your Enduring Guardian(s) have the same legal status as a decision made by you.

How is an Enduring Guardian appointed?

To appoint an Enduring Guardian you must complete an Enduring Power of Guardianship form.  To be legally enforceable, your EPG form must be in the form, or substantially in the form, specified in Schedule 1 of the Guardianship and Administration Regulations 2005.  The form must be completed and witnessed correctly and the person or people whom you wish to appoint as your Enduring Guardian(s) must accept the appointment by completing the acceptance section of the form in the manner required by the Act.

Who should be given a copy of the EPG?

It is recommended that all Enduring Guardians and substitute Enduring Guardians be given a certified copy of your EPG.  To ensure that people are aware you have made an EPG and consult your Enduring Guardian as required, it is also recommended that a certified copy is given to your GP and relevant health professionals.  You may also wish to provide a copy to family members.

Can an EPG be cancelled?

While a person has legal capacity, they may revoke their EPG at any time.  Although revocation in writing is not a legal requirement, the Public Advocate recommends that written notification is given to all enduring and substitute Enduring Guardians and that they are asked to return all copies of the EPG to the appointor, to be destroyed.  It is also recommended that all relevant persons and organisations, including the appointor’s general practitioner, other health professionals and family members, are informed in writing of the revocation.

What if an Enduring Guardian wants to resign from the role:

  • If the appointor has capacity, the Enduring Guardian may resign at any time.
  • If the appointor has lost capacity, the Enduring Guardian must apply to the State Administrative Tribunal for an alternative arrangement to be put in place.

Make an appointment with Formbys Lawyers today by phoning 08 9354 0300 or complete the Will Instruction Sheet – Condensed Version and return it to admin@formbyslawyers.com

 

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