Enduring Guardianship: Appointments and Review

What Enduring Guardianship Authorises

An enduring guardian can make the personal decisions conferred by a valid appointment when its conditions for operation are met. Possible functions include choosing accommodation and arranging personal services. Healthcare authority requires its own examination of the instrument and local consent law.

An advance appointment records the person’s own choice while they have capacity to make it. A tribunal’s guardianship order comes from a separate application and decision. The distinction affects the document you obtain and the route for resolving disputed authority. See guardianship orders for the tribunal appointment framework.

Keep these authorities separate when advising on a proposed move into care:

• An accommodation function concerns where the person lives.
• A services function concerns the personal support they receive.
• A treatment-consent function operates within the applicable medical and dental consent rules.
• An advance care directive records the person’s own directions about future care.
• Financial authority concerns access to money and property, including payment arrangements.

The NSW Government’s explanation of enduring guardianship distinguishes personal functions from financial decisions. Even where one person holds both appointments, identify which authority supports each act. The power of attorney guide covers financial appointments.

Prepare and Check the Enduring Guardian Appointment

Prepare the appointment from the client’s instructions under the relevant jurisdiction’s rules. In NSW, use the Appointment of Enduring Guardian instrument prescribed under the guardianship legislation. Do not use an interstate form as a substitute.

Collect the prescribed NSW Appointment of Enduring Guardian instrument and its instructions. The NSW Trustee and Guardian handbook PDF explains the appointment framework. NSW Trustee and Guardian prepares appointments through its service and does not supply blank forms. A downloaded guide or an older form is not evidence of a completed, valid appointment.

Work through the following checks before treating a NSW appointment as complete:

1. Establish the jurisdiction and obtain the applicable form. Read the Guardianship Act 1987 alongside the prescribed form and witnessing requirements.
2. Take instructions directly from the client. Meet privately where family involvement raises concerns about pressure, and record communication support or interpreting arrangements.
3. Confirm the NSW client and nominated guardian are at least 18. Assess the client’s understanding of the appointment. Record why they understand its nature and effect. Obtain an appropriate capacity assessment where understanding is in doubt.
4. Check the proposed guardian’s eligibility and willingness. NSW excludes people involved professionally in supplying the client’s paid medical, accommodation or daily-living services. Do not assume a general family relationship answers eligibility.
5. Set out the intended functions and directions. Address accommodation separately from healthcare and treatment consent. Where restrictive practices are contemplated, examine the express authority needed for that setting.
6. Arrange execution before an eligible witness. A practising solicitor is an available NSW witness. Complete the required certificates and ensure every appointed guardian signs the acceptance with the required witnessing.
7. Check the completed instrument against the instructions. Retain the executed document securely, give the guardian a copy and record who else receives one.

Legal Aid NSW’s appointment guidance explains capacity, functions and witnessed acceptance. The appointor and guardian can sign at different times before different eligible witnesses. An incomplete acceptance needs completion before reliance on the appointment.

NSW does not require registration of the appointment. The NSW Local Court’s appointment guidance distinguishes optional safekeeping registration from execution. Before closing the file, record the maker’s capacity, appointed person, functions, witnessed acceptance and document location. Apply any local registration requirement when the instrument is made elsewhere.

Material Differences Outside NSW

Western Australia uses an Enduring Power of Guardianship under Part 9A of the Guardianship and Administration Act 1990. Its execution requires two witnesses, with at least one authorised to witness statutory declarations. Joint guardians must agree on decisions. Registration is unnecessary. The Office of the Public Advocate’s information kit and form explains execution and acceptance.

Tasmania uses an enduring guardianship instrument under section 32 of the Guardianship and Administration Act 1995. The appointment must be registered with the Tasmanian Civil and Administrative Tribunal (TASCAT). Service Tasmania’s appointment instructions specify guardian acknowledgement and two adult witnesses unrelated to the appointor or nominated guardians. These requirements demonstrate why the NSW procedure cannot be applied nationally.

When the Guardian Can Act

The guardian’s authority depends on the person’s inability to make the relevant decision and the functions granted by the appointment. A diagnosis alone does not establish authority for every personal decision. Examine the person’s understanding of the actual accommodation or services choice, including the support available to help them decide.

Before the guardian acts, assemble the executed appointment and any later changes. Identify the function covering the proposed decision and record the evidence that its commencement conditions are met. If capacity is disputed, seek clinical evidence addressing that decision. A generic diagnosis letter may leave the disputed question unanswered.

The NSW guardian guidance explains the distinction between a capable person’s appointment and a tribunal application after capacity is lost. If the person regains the ability to make the relevant decision, reassess the guardian’s authority before another substitute decision.

Fictional Accommodation Example

Mara has appointed her niece, Elena, as enduring guardian in NSW with an accommodation function. Her brother, David, holds a separate enduring power of attorney. Following an illness, a clinician assesses Mara’s capacity to decide between supported living at home and residential care.

Mara’s solicitor obtains both executed instruments. The solicitor checks the accommodation function and any direction about remaining at home, then considers the capacity evidence and Mara’s expressed preferences. Elena’s decision must stay within that personal authority.

The provider also needs financial arrangements for the proposed placement. David’s authority to commit funds requires a separate check of the power of attorney and its operation. Elena’s accommodation function alone does not authorise her to withdraw money or sell Mara’s home.

Incorrect approach: accept Elena’s appointment as authority for every care and payment document.

Correct approach: identify each proposed act, then obtain the document and evidence supporting the person who will perform it. If the move requires treatment consent or restrictive practices, assess those powers separately before proceeding.

Directions, Joint Appointments and Changes

Directions and appointment structure determine how an authorised guardian makes a decision. Read consultation requirements and limits alongside the function itself. A direction to consult a named relative differs from appointing that relative jointly.

In NSW, the instrument can provide for joint, several or joint-and-several arrangements. Joint guardians must reach agreement where the appointment requires them to act together. Several authority permits separate action within the functions granted. Record which arrangement applies to the decision, rather than assuming any named guardian can sign alone.

A substitute guardian acts when the appointment’s substitution conditions are met. Obtain evidence of the original guardian’s inability to continue and read the substitution clause. The substitute’s name on the document does not establish that the role has commenced.

While the NSW appointor has capacity to revoke, use the required revocation instrument and witnessing process, then give notice to the guardian. A new appointment needs its own proper execution. Record what happened to the earlier appointment, retrieve accessible copies and notify providers who hold it. Preserve the old version in the solicitor’s file as evidence of the change.

After capacity to make the relevant change is lost, a relative cannot repair the appointment by obtaining a fresh signature. Use the applicable tribunal route. In Tasmania, changes to an enduring guardianship also require registration, as the TASCAT enduring guardianship fact sheet explains.

Disputes, Review and Interstate Use

A disputed appointment needs an identified legal question and evidence supporting the requested response. Separate a challenge to execution or eligibility from a disagreement about a decision made under an otherwise valid appointment.

Prepare the relevant material for the tribunal:

• The complete instrument, acceptances and witness certificates, together with earlier appointments or revocations.
• Evidence of capacity when the appointment was made and when the disputed decision arose.
• The function relied on, any directions and the decision or conduct challenged.
• Correspondence showing consultation, disagreement or a refusal to provide information.
• The proposed orders and the personal decision that needs resolving urgently.

In NSW, a person with a genuine concern for the appointor’s welfare can seek NCAT review of an enduring guardianship appointment. NCAT can confirm or revoke an appointment and vary functions. It can also declare that the appointment has effect. It does not routinely supervise enduring guardians.

Western Australia’s State Administrative Tribunal explains its enduring guardianship powers, including revocation, variation and recognition of an interstate instrument. In Tasmania, apply to TASCAT for review of the appointment under its guardianship jurisdiction.

Interstate use requires a destination-specific recognition check. NCAT states that interstate enduring guardianship appointments or their equivalents are automatically recognised in NSW. That does not establish recognition of a NSW instrument everywhere else. Check the receiving jurisdiction’s recognition provisions and permitted functions before a provider relies on the document.

Compare the Instrument Before Interstate Use

NSW uses an Appointment of Enduring Guardian. WA uses an Enduring Power of Guardianship, with its own form and two-witness rules. Tasmania retains an enduring guardianship instrument and requires registration. The titles identify different local procedures.

In Victoria, an enduring power of attorney for personal matters can cover decisions such as accommodation. Medical treatment requires separate authority. Two adult witnesses are required for the enduring power, with one authorised to witness affidavits or a registered medical practitioner. Apply the prescribed eligibility exclusions for witnesses.

Queensland uses an enduring power of attorney for personal matters (including health) and financial matters as specified. Its short and long forms accommodate different appointment arrangements. Select the document and witness requirements under Queensland law rather than relabelling an NSW form.

South Australia’s advance care directive can appoint substitute decision-makers for personal affairs, living arrangements and healthcare. The official kit contains the form and completion instructions. It is a different instrument from a financial power of attorney.

For an elder-law file, identify who can make the personal decision and who can authorise the associated payment. Record both instruments even if one person holds both roles. A claim about unexplained withdrawals requires transaction evidence and analysis of financial authority. It does not become a personal-appointment review merely because the same relative is an enduring guardian. Where financial authority is missing, financial management orders involve a separate appointment process.

An unresolved treatment-consent question requires the specific local consent framework. Use the medical treatment decision-maker guide for healthcare appointments and their separate rules. Before the proposed personal decision proceeds, identify the authorised decision-maker and record the evidence that the appointment operates for that decision.