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Understanding Enduring Guardianships in NSW

Enduring Guardianships: What they mean for you

Enduring Guardianships play a crucial role in safeguarding your future, ensuring that your wishes are respected and decisions made by someone you trust when you’re unable to make medical, lifestyle and other personal decisions for yourself. These documents have great importance so we’re shining the spotlight on them to help you navigate the ins and outs of Enduring Guardianships in NSW.

What is an Enduring Guardianship?

An Enduring Guardianship empowers the individual(s) you nominate to make decisions on your behalf regarding personal matters if you’re unable to do so yourself. These appointed guardians hold the authority to communicate your preferences to healthcare professionals, make choices regarding medical treatments, personal services, and even decisions about your place of residence.

When does an Enduring Guardianship come into effect?

For an Enduring Guardianship to be invoked, you must be partially or wholly incapacitated, whether temporarily or permanently. It’s crucial to note that a medical practitioner must confirm sufficient loss of mental capacity, and it’s not an assessment that can be or should be done the lay person. This is an essential mechanism that makes sure the document is used only during periods where there’s a genuine need.

Timing is key: Why preparation matters with Enduring Guardianships

Same as with all estate planning documents such as Powers of Attorney and Wills, Enduring Guardianship documents must be prepared while you still have mental capacity. Waiting until the need arises may be too late and the choice as to your substitute decision-maker will often be out of your hands and up to a tribunal to decide. It’s essential to plan ahead but nominating your substitute decision-makers yourself now while you’re fully capable of doing so.

Marriage, divorce, and Enduring Guardianships: What you need to consider

It’s important to understand the impact of significant life events on your Enduring Guardianship. While divorce does not automatically revoke an Enduring Guardianship in NSW, people going through separation may wish to reconsider their appointed guardian(s), especially if their ex-spouse is nominated in their Enduring Guardianship. Marriage, however, does revoke an Enduring Guardianship (same as a Will), so it’s important to do regular reviews and updates of your estate planning documents when your circumstances change.

Revoking and updating Enduring Guardianships

You have the right to revoke and update your Enduring Guardianship, change your guardians and/or extend or restrict any powers you give while you still have mental capacity. Keep in mind that preparing a new Enduring Guardianship does not automatically revoke the previous one. Signing a Revocation of Appointment of Enduring Guardian document is necessary to revoke an Enduring Guardianship and the guardians under the document need to be provided with a copy.

Advanced Health Care Directives vs Enduring Guardianships

While Advanced Health Care Directives can offer valuable insights into your healthcare preferences, they do not grant legal authority to your guardians. Unlike Enduring Guardianships, which empower your appointed guardians to make decisions on your behalf, Advanced Health Care Directives serve as guides for your guardian(s), outlining your healthcare choices and preferences. In NSW, Enduring Guardianships look after the legal appointments of guardian.

Take the first step? Book a free 10 minute chat with a lawyer

Your future is worth protecting. Book in a complimentary 10 minute chat with one of our experienced lawyers here, or drop us an email at [email protected] to kickstart your estate planning.

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