What is an Enduring Guardianship?
Updated: 20 December 2023 · Read time: 6 minutes
Enduring Guardianship is when someone is legally appointed by an individual to make decisions about their health and lifestyle in situations where they cannot make those decisions for themselves.
It is an element of long-term life planning, where you have someone who can make critical decisions for your health and being in the unfortunate event that you become mentally or physically incapacitated to the extent that you can’t make decisions for yourself.
An enduring guardian is someone that you trust, and who understands what your wishes would be in the event you are no longer able to make your own decisions.
What decisions can an Enduring Guardian make?
Enduring Guardians play a crucial role in making decisions about personal and healthcare matters. These decisions can encompass a wide range of issues, including:
- Medical treatment
Enduring Guardians can make decisions regarding medical treatments, surgeries, and medications. They may need to consult with healthcare professionals and consider the individual's values and wishes. - Living arrangements
Decisions about where the person should live, whether in their own home, with family, or in a care facility, fall under the purview of the Enduring Guardian. - Lifestyle choices
Matters related to the person's daily life, such as dietary preferences, recreational activities, and social interactions, can also be decided by the Enduring Guardian. - End-of-life care
In cases where the individual's condition is terminal, the Enduring Guardian may make decisions about palliative care and end-of-life choices.
These decisions should always be made in the best interests of the person involved and in alignment with their known values and preferences.
Who can you appoint as your Enduring Guardian?
Choosing the right Enduring Guardian is a significant decision, as they will have the authority to make crucial life decisions on your behalf.
It is important that the individual appointed:
- Demonstrates a willingness to assume the role.
- Understands that this role does not come with financial compensation.
- Exhibits the capacity to make decisions even in challenging and emotionally charged situations.
- Possesses a deep understanding of the appointee's needs, desires, values, and beliefs.
- Maintains accessibility for prompt decision-making when required.
It's common to appoint a family member or a close friend as an Enduring Guardian, as they often have the best understanding of your values and preferences.
However, some individuals may choose a legal or healthcare professional if they believe it's in their best interest.
What is the difference between enduring guardianship and power of attorney?
Both Power of Attorney and Enduring Guardianship are roles that delegate decision making to another individual. However they serve different purposes.
Enduring Guardianship pertains to decisions related to an individual's personal, health, and lifestyle matters. This includes choices about medical treatments, living arrangements, and other personal aspects of the person's life. An Enduring Guardian is responsible for ensuring the person's values and preferences are upheld.
Power of Attorney, on the other hand, focuses on financial and legal matters. It allows someone to make decisions concerning the person's finances, property, and legal affairs, including signing documents or managing investments. Someone with Power of Attorney does not have authority over personal and health-related decisions.
Can you have more than one Enduring Guardian?
Yes, it is possible to have more than one Enduring Guardian. In some cases, appointing multiple guardians can be beneficial, especially if different individuals are well-suited to make decisions in various aspects of your life.
Having multiple guardians allows for a division of responsibilities, ensuring that each guardian focuses on areas where they have expertise and understanding.
When appointing multiple Enduring Guardians, it's essential to specify their roles and responsibilities clearly.
You can outline which decisions each guardian is responsible for, preventing conflicts and ensuring a smooth decision-making process.
Different types of Enduring Guardians
Multiple Enduring Guardians
Multiple Enduring Guardians are a common arrangement, particularly when the person seeking guardianship prefers a division of responsibilities.
In this scenario, two or more guardians are appointed to work together, each taking charge of specific aspects of personal and healthcare decisions.
For instance, one guardian may oversee medical decisions, while another handles lifestyle and living arrangements.
Substitute Enduring Guardian
In addition to Multiple Enduring Guardians, some individuals appoint Substitute Enduring Guardians.
These individuals step in when the primary Enduring Guardian is unable or unwilling to fulfil their role.
The Substitute Enduring Guardian takes over the decision-making responsibilities until the primary guardian can resume their duties or until a permanent decision is made regarding the primary guardian's role.
How do you end the appointment of an Enduring Guardianship?
Ending the appointment of an Enduring Guardian is a decision that should be made carefully and in the best interests of the individual involved.
The following situations may lead to the termination of an Enduring Guardianship:
- Resignation
An Enduring Guardian can choose to resign from their role, provided they do so in writing and ensure that the person they were appointed to represent is not left without a guardian. - Incapacity
If the Enduring Guardian becomes incapacitated or loses the capacity to make decisions, they may no longer be able to fulfil their role. - Court order
In certain circumstances, a court may decide to revoke the appointment of an Enduring Guardian if it is determined that their decisions are not in the best interests of the person they represent.
What happens if you don't have an Enduring Guardian?
If you do not have an appointed Enduring Guardian, the decision-making process in personal and healthcare matters may become more complicated.
In the absence of an Enduring Guardian, healthcare professionals and family members may need to make decisions collaboratively.
If an individual loses the capacity to make their own decisions and does not have an Enduring Guardian in place, an application to the Guardianship Tribunal may become necessary for the appointment of a manager to make decisions on their behalf.
The Guardianship Tribunal serves as a legal tribunal responsible for various functions, including the appointment of individuals to act on behalf of those aged 16 years and over with disabilities or individuals who are incapable of making their own decisions.
In cases where the Tribunal does not identify a suitable candidate for appointment, it may designate the Public Guardian to oversee one's affairs.Having an appointed Enduring Guardian simplifies the decision-making process and ensures that your values and preferences are upheld.
FAQs
Can the enduring guardian make decisions around finances?
No, Enduring Guardians are not responsible for financial decisions. Financial matters fall under the domain of a Power of Attorney, which is a separate legal arrangement.
What are Advanced Care Directives?
In certain instances, you might wish to articulate your preferences concerning end-of-life decisions. These preferences are outlined in a document known as an "advanced care directive."
