What is a guardian?

An Enduring Guardian is a person appointed to make medical, personal and lifestyle decisions for you when you become mentally incapacitated (for example if you become seriously ill).

As with a power of attorney, your appointment of a guardian means that you avoid having a Guardianship authority or the Supreme Court appoint someone on your behalf to manage your affairs. If you nominate a guardian it should be someone who you trust to manage your affairs and make decisions in accordance with your wishes.

You can do this by preparing and executing an “Appointment of Guardian” document.

When should a guardian be appointed?

Having an appointed guardian when you have a serious accident, or if you become seriously ill, means that your guardian will manage your affairs and make decisions for you until you regain your mental capacity. However, you can only appoint a guardian when you are sound of mind which means before you become ill or before you become mentally incapacitated. After that time an application can be made to a Guardianship authority for a guardian appointment.

What powers does a guardian have?

You determine what decisions your guardian can make for you while you are mentally incapacitated by specifying as many or as few decision-making “powers” as you like.

These could include whether or not you consent to certain medical treatments, where you wish to live, what services you want such as home help or other care services.

A guardian cannot make a will for you, vote on your behalf, consent to a marriage or manage your financial affairs although an attorney appointed under an Enduring Power of Attorney can manage these affairs if you want them to.

What do I do if I want to challenge the actions of a guardian?

To challenge the actions of a guardian of a relative or friend, you can approach the Guardianship authority in the state the person lives and ask for a review of the guardian’s appointment. The authority has the power to revoke appointments.

The Australian Guardianship and Administration Committee

www.agac.org.au looks after the interests of adults with a disability that impairs their capacity to make decisions and manage their affairs. It is made up of:

• Public Advocates
• Public and adult guardians
• Boards and tribunals and;
• Australian Public and State Trustees or their equivalents.