Enduring Guardianship

An Enduring Guardianship is a legal appointment that allows you to nominate someone you trust to make personal, lifestyle, and health care decisions for you if you lose the ability to make them yourself. In New South Wales, this appointment is governed by the Guardianship Act 1987 (NSW) and is an essential part of any comprehensive estate planning strategy. At Golottas Solicitors, we assist clients across Western Sydney in understanding, preparing, and formalising enduring guardianship documents to ensure their wishes are protected in all circumstances.

What Is an Enduring Guardian?

An Enduring Guardian is a person you legally authorise to make decisions about your health, accommodation, and lifestyle if you lose decision-making capacity due to illness, accident, or ageing. The appointment only takes effect when you can no longer make these decisions yourself. While a Power of Attorney allows someone to manage your financial affairs, an Enduring Guardian focuses on personal and medical choices. Many people in Western Sydney appoint both to ensure full coverage of their personal, financial, and medical matters.

Key Powers of an Enduring Guardian

When you appoint an Enduring Guardian, you decide which powers they will have. These may include the ability to:

• Decide where you live (for example, at home, with family, or in residential care)
• Choose what health care and medical treatment you receive
• Consent to or refuse medical procedures on your behalf
• Access your health and personal information to make informed decisions
• Decide who can visit or communicate with you
• Make lifestyle and support arrangements aligned with your values

Your guardian must act in your best interests and follow any written directions or restrictions you include in the document. At Golottas Solicitors, we help clients phrase these instructions clearly to ensure there is no confusion or conflict later on.

Enduring Guardian vs Power of Attorney

Many people confuse an Enduring Guardian with a Power of Attorney, but they serve different purposes. The table below highlights the key differences:

Most people should have both documents prepared at the same time for full protection. Golottas Solicitors can draft both to ensure consistency and legal validity.

How to Appoint an Enduring Guardian in NSW

The process is straightforward but must follow legal formalities to be valid.

If an appointment is not witnessed correctly, it may be invalid, and decisions could later be challenged. That is why it is best to complete your enduring guardianship through an experienced wills and estates solicitor.

What Happens If You Do Not Have an Enduring Guardian

If you lose capacity and have not appointed an Enduring Guardian, no one automatically has the right to make personal or health decisions for you. Your family, friends, or carers would have to apply to the NSW Civil and Administrative Tribunal (NCAT) for a guardianship order. This process can be time-consuming, stressful, and expensive, especially if there are disagreements about who should be appointed.

Without an enduring guardianship in place:

• Medical treatment may be delayed while the Tribunal decides who can consent.
• Disputes can arise between family members about where you should live or what care you should receive.
• The Tribunal could appoint the NSW Public Guardian, meaning a government official, not your loved ones, would make decisions for you.

To prevent this, Golottas Solicitors advises all clients, especially older adults or those with ongoing health conditions, to have an enduring guardianship prepared alongside their will and power of attorney.

Who Can Be an Enduring Guardian

Your guardian must be over 18 and someone you trust completely. They cannot be:

• A person providing you with accommodation or paid services (such as your nurse or carer)
• Someone involved in a conflict of interest (for example, a business partner)

Most clients choose a spouse, adult child, sibling, or close friend. If you appoint more than one guardian, you can specify whether they must make decisions jointly (together) or severally (individually). Joint appointments encourage collaboration, while several appointments allow flexibility if one guardian is unavailable.

At Golottas Solicitors, we discuss these options in detail to help you select the arrangement that best suits your family dynamics and long-term care preferences.

When Does an Enduring Guardianship End?

Your Enduring Guardianship continues for as long as you are alive unless:

• You revoke it in writing while you still have capacity
• Your guardian resigns or dies
• The NSW Civil and Administrative Tribunal cancels it due to misconduct or disputes
• You appoint a new enduring guardian

Once you pass away, your Enduring Guardianship automatically ends, and your executor (appointed in your will) takes over responsibility for your estate.

When Does an Enduring Guardianship End?

Your Enduring Guardianship continues for as long as you are alive unless:

• You revoke it in writing while you still have capacity
• Your guardian resigns or dies
• The NSW Civil and Administrative Tribunal cancels it due to misconduct or disputes
• You appoint a new enduring guardian

Once you pass away, your Enduring Guardianship automatically ends, and your executor (appointed in your will) takes over responsibility for your estate.

Can an Enduring Guardian Be Overruled?

Yes. The NSW Civil and Administrative Tribunal (NCAT) can review and change an enduring guardianship if concerns are raised about a guardian’s conduct or suitability. The Tribunal may:

• Revoke the appointment
• Modify or limit the guardian’s powers
• Appoint a new guardian (including the Public Guardian)

Examples of situations where this may occur include neglect, conflict of interest, or acting contrary to the principal’s best interests. Golottas Solicitors can represent clients in NCAT hearings to defend or challenge guardianship decisions and ensure their rights are protected.

How Enduring Guardianship Supports Advance Care Planning

An Enduring Guardianship is often used together with Advance Care Directives, which record your preferences for medical treatment and end-of-life care. While an Advance Care Directive provides written instructions, your enduring guardian ensures those wishes are carried out in practice.

Together, they give you complete control over how personal and health decisions are made when you can no longer communicate them yourself. Golottas Solicitors integrates these documents into every estate planning package to provide comprehensive protection.

Benefits of Appointing an Enduring Guardian

Without a valid appointment, families often face unnecessary legal proceedings. Golottas Solicitors provides the clarity and documentation you need to make your wishes legally enforceable.

Frequently Asked Questions About Enduring Guardianship in NSW

1. Can I have more than one Enduring Guardian?
   Yes. You can appoint multiple guardians to act jointly or independently. This can be useful if one person travels frequently or has limited availability.
2. Does my guardian have access to my finances?
   No. Enduring guardians only make lifestyle and health decisions. Financial matters are handled through an Enduring Power of Attorney.
3. Do I need a solicitor to make an Enduring Guardianship?
   While you can complete the form yourself, legal witnessing and advice are strongly recommended. Incorrect execution or unclear wording can make the document invalid. Golottas Solicitors ensures your appointment is legally sound and properly witnessed.
4. Can I change my guardian later?
   Yes. You can revoke and replace your guardian at any time while you have decision-making capacity. The revocation must also be witnessed by an authorised witness such as a solicitor.
5. What if my guardian lives interstate?
   You can appoint an interstate guardian, but practical challenges may arise. Discuss logistics and accessibility with your solicitor before finalising your decision.

How Golottas Solicitors Can Help

At Golottas Solicitors, we understand that appointing an Enduring Guardian is a deeply personal decision. Our experienced estate planning lawyers guide clients through every step, from explaining the legal powers involved to drafting clear, enforceable documents. We provide:

• Tailored advice to ensure your guardian’s powers reflect your exact wishes
• Coordination with your Power of Attorney and Will for a unified estate plan
• Proper witnessing and certification under NSW law
• Assistance with NCAT applications if disputes or reviews arise
• Secure document storage and updates when your circumstances change

Our goal is to help you maintain independence and dignity while protecting your loved ones from uncertainty and conflict.

Key Takeaways

Conclusion

An Enduring Guardianship is one of the most important legal documents you can have. It ensures that if you ever lose capacity, someone you trust will make decisions that reflect your values and preferences. It works hand-in-hand with your will and power of attorney, forming the foundation of a complete estate plan.

If you would like to appoint an Enduring Guardian in NSW or review your existing estate documents, contact Golottas Solicitors today. Our dedicated team provides compassionate, practical advice to protect your future and your family.