FAQs

Guardianship Appointments

Please select from either list below the area in which you have questions:





Q:

What do I need to do to prepare a guardianship appointment?

A:

To appoint an enduring guardian you need to complete a Form of Appointment of Enduring Guardian which we can assist you with.

Substitute appointments are also permitted by the Act and you should consider appointing substitutes.

Your signature to the Form of Appointment of Enduring Guardian and the signature of the people you appoint must be witnessed by a solicitor, barrister or clerk at the Local Court. It does not have to be the same witness.

Before appointing someone, you will need to discuss it with them, as they too will need to sign the form of appointment.

You may also want to discuss the appointment of the guardian with members of your family so they know what you have done.

Q:

Guardianship appointment – What happens if I don’t have a guardianship appoinment and I lose my capacity?

A:

If you lose your capacity and you have not appointed someone as your guardian, subject to the operation of the Guardianship Act, there is at that point no one who has the legal capacity to make lifestyle and welfare decisions for you. Not even your spouse or partner or in the case of a child over 18, your parent.

Normally lifestyle and welfare decisions are made by your immediate family. However, a decision made by a family member who is not your spouse or defacto spouse or a parent in the case of a child under 18 may not have legal force if it is not something that is specifically permitted by part 5 of the Guardianship Act, which deals only with certain medical and dental procedures.

As lifestyle and welfare decisions include so much more than medical and dental procedures, unless you appoint someone to be your guardian, you have no guarantee if you lose your capacity either as to who will be appointed to be your guardian or of the decisions they will make.

What’s more, in certain circumstances, the Guardianship Act permits for someone other than your immediate family, who has had your care (other than for payment), to make application to be your guardian. That may not be what you want.

Don’t think that your enduring power of attorney is enough. An enduring power of attorney permits an attorney to make decisions about all of your money and property if you are not capable of doing this for yourself. It does not permit an attorney to make lifestyle and welfare decisions for you.

You can avoid these potential problems by appointing someone as your guardian.

Q:

What is a guardianship appointment?

A:

An enduring guardian is someone you choose to make lifestyle and welfare decisions for you when you are not capable of doing this for yourself.

You choose which decisions (functions) you want your enduring guardian to make (have) and you can give your guardian directions on how to carry out those functions.

An enduring power of attorney permits an attorney to make decisions about all of your money and property if you are not capable of doing this for yourself. A power of attorney does not permit an attorney to make lifestyle and welfare decisions for you.

Usually lifestyle decisions are made by your immediate family. However, a decision made by a family member who is not your spouse or defacto spouse may not have legal force if it is not something that is specifically permitted by part 5 of the Guardianship Act (which deals only with certain medical and dental procedures – life style decisions include so much more than that).

In certain circumstances, the Guardianship Act permits for someone other than your immediate family, who has had your care (other than for payment), to make application to be the person who can make decisions about certain medical and dental procedures (referred to as the “person responsible”). That may not be what you want.