Since February 1998, it has been possible for adults, persons eighteen years and above, in New South Wales, to appoint an enduring guardian to make personal or lifestyle decisions on their behalf when they lose the capacity to make those decisions for themselves. In the appointment documents you are referred to as the appointor and the enduring guardian as the appointee.

The enduring guardian will be able to make any of the personal or lifestyle decisions enumerated in the appointment document. In the normal course, the enduring guardian will be able to decide where the appointor is to live, what health care and other personal services they are to receive and to act as their decision- maker in relation to medical and dental treatment proposed for them by others. The appointor can decide not to give the enduring guardian any one or more of those functions and can authorise the enduring guardian to carry out other, lawful, functions.

The appointor can give the enduring guardian directions as to the exercise of the functions, or decision-making powers, given to them. While there is no empirical evidence on the issue, it is anticipated that most of the directions given by an appointor will be in relation to the decision-making of the enduring guardian about health care and medical and dental treatment. It is anticipated that appointors will give directions as to the kinds of treatment they would wish to receive if certain situations in relation to their health arose. These directions would be a form of advance directive.

The appointor can appoint one or more enduring guardians to make substitute personal decisions for them in accordance with the terms of the appointment document. They can, if they wish, appoint one or more enduring guardians to make all of the decisions set out in the appointing document either jointly or severally. They can decide to give certain functions to one enduring guardian and other functions to another enduring guardian. If an appointor wishes to do this, it is better if they make two separate appointments of enduring guardianship, possibly cross-referencing between the two.

Where the appointor appoints joint guardians, they may decide that if one or more of the joint guardians becomes incapacitated, resigns or dies, that the appointment is to continue. If they do not deal with this issue in the appointment, the appointment will cease to operate or to be able to operate if one or more of the joint enduring guardians becomes incapacitated, resigns or dies.”

The enduring guardianship appointment takes effect only when the appointor has lost capacity to make their own decisions. The formal position is that the appointment has effect only during such time as the appointor is ‘a person in need of a guardian’. The term ‘person in need of a guardian means when the appointor becomes intellectually, physically, psychologically or sensorily disabled, or of advanced age, or mentally ill or otherwise disabled. In addition, by virtue of that disability, they must be restricted in one or more major life activities to such an extent that they require supervision or social habilitation. Furthermore, they must be a person who, because of those matters, is totally or partially incapable of managing their person.
In most cases, there will be no argument about the fact that the appointor has now become incapable and the enduring guardianship appointment is in operation. However, if there are differences of opinion about that matter, there are two ways of dealing with that in a more formal manner. The first is to obtain a certificate from a medical practitioner to the effect that the appointor was, on a certain day, ‘a person in need of a guardian. Such a certificate is evidence of the fact that the appointor was ‘a person in need of a guardian’ at the time in question. If, for some reason, such a certificate does not satisfy relevant people and there is some doubt about the issue, then a person appointed as an enduring guardian may apply to the Guardianship Tribunal for an order declaring that the appointment is in effect. If the Tribunal is satisfied, as a result of evidence considered by it at a hearing, that the appointor is ‘a person in need of a guardian , the Tribunal may, by order, declare that the appointment of the enduring guardian has effect.

Because of the new legislation and policies in relation to access to information, the Act has been amended to provide that where an enduring guardian is exercising a function under an appointment, the enduring guardian has the same right of access to information about the appointor as the appointor has. Also, the Privacy and Personal Information Protection Act 1998 is not to be administered so as to prevent a public sector agency from disclosing information about an appointor to an enduring guardian if the agency is satisfied that the disclosure of the information will assist the enduring guardian to exercise their functions

There are procedures for an appointor to revoke an appointment of an enduring guardian Also, if an appointment of enduring guardianship is in place and the appointor either marries or re-marries, the appointment is automatically revoked.
The enduring guardian may resign their appointment by giving notice to that effect to the appointor. If the appointment is in effect the resignation of the enduring guardian, it must be approved by the Guardianship Tribunal. The point of this provision is that if the appointor has lost the capacity to make a further appointment, it is-appropriate for consideration to be given to whether or not the appointor needs someone else to be given authority to act as their guardian if the guardian may have chosen to resign. The Tribunal has some discretion to appoint a substitute enduring guardian where the Tribunal considers this appropriate. The Tribunal must be satisfied that the appointor is in need of an enduring guardian, that the proposed enduring guardian has a close personal relationship with the appointor and that they are capable of carrying out the functions of an enduring guardian.