Appointment of Enduring Guardians in Sydney: Protecting Your Future with Legal Certainty
Planning for the possibility that you may one day be unable to make your own health or lifestyle decisions is not a sign of pessimism—it’s a profound act of responsibility. In Sydney, where access to quality healthcare and aged care is critical, appointing an Enduring Guardian gives you control over who will speak for you when you can no longer speak for yourself.
At GJA Law, we help individuals safeguard their autonomy and dignity through legally sound Enduring Guardianship appointments. Our services are rooted in clear, practical advice, transparent fees, and deep expertise in NSW succession and guardianship law. Whether you’re preparing for retirement, managing a chronic illness, or simply planning ahead, we ensure your voice is heard—now and in the future.
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What Is an Enduring Guardian?
An Enduring Guardian is a trusted person you legally appoint to make lifestyle and medical decisions on your behalf if you lose the capacity to do so yourself.
Under the Guardianship Act 1987 (NSW)—as amended in 1997—any adult with legal capacity (the “Appointor”) can nominate an Enduring Guardian of their choice. This framework empowers individuals while providing oversight through the NSW Civil and Administrative Tribunal (NCAT) and the Supreme Court, which retain powers of review and intervention if concerns arise.
Your Enduring Guardian may be authorised to:
- Decide where you live (e.g., at home, in assisted living, or residential care)
- Consent to or refuse medical, dental, or surgical treatment
- Make decisions about your daily care and personal services
- Carry out any other function you specify in the appointment
Importantly, an Enduring Guardian does not manage your finances—that role belongs to an Attorney under an Enduring Power of Attorney.
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Who Should Appoint an Enduring Guardian?
Every adult over 18 with decision-making capacity should consider appointing an Enduring Guardian. This is especially important if you:
- Are approaching older age or managing age-related health risks
- Have a family history of dementia, stroke, or cognitive decline
- Live alone or have complex care needs
- Want to ensure your personal, cultural, or religious values guide your care
- Wish to avoid NCAT appointing a public guardian or estranged family member
Without an Enduring Guardian, decisions about your health and living arrangements may fall to medical professionals or the Tribunal—leaving your wishes unrepresented.
Legal Requirements for Appointing an Enduring Guardian
To be valid under NSW law, an Appointment of Enduring Guardian must strictly comply with the Guardianship Act 1987. Key requirements include:
- Use of the prescribed “Form of Appointment” (available from NCAT or legal professionals). You may add conditions or limitations (e.g., “no nursing home placement without consultation with my children”).
- The Appointor must sign the form while they still have full legal capacity.
- The proposed Guardian must consent by signing the same document.
- An eligible witness must observe all signatures. Acceptable witnesses include:
- A solicitor or barrister
- A Clerk of the Local Court
(Note: The witness cannot be the appointed Guardian or a beneficiary under your Will.)
- The witness must sign a certificate confirming that:
- You understood the nature and effect of the appointment
- You signed voluntarily, without pressure
Failure to meet these formalities can render the appointment invalid, leaving you unprotected at a critical time.
Choosing an Enduring Guardian
This is one of the most important decisions you’ll make. Consider:
- Trust and reliability: Will they act in your best interests?
- Understanding of your values: Do they know your views on medical interventions, independence, or end-of-life care?
- Availability and capacity: Are they able and willing to take on this responsibility?
Eligible Guardians must be over 18 and cannot be paid caregivers or healthcare providers (e.g., your GP, nurse, or psychiatrist), to avoid conflicts of interest.
You may also appoint multiple Guardians:
- Jointly: All must agree on every decision
- Severally: Any one can act independently
- Jointly and severally: Flexibility to act together or alone
You can even assign different functions to different people—for example, one Guardian for medical decisions, another for accommodation.
Can I Appoint More Than One Guardian?
Yes. You can appoint two or more Guardians:
- Jointly – all Guardians must agree on decisions
- Severally – any Guardian can act independently
- Jointly and severally – Guardians may act together or separately
You can also appoint different Guardians for different functions.
For example:
- One Guardian for medical and dental treatment
- Another Guardian for lifestyle and accommodation decisions
Powers and Responsibilities of an Enduring Guardian
An Enduring Guardian has a fiduciary duty to act:
- In your best interests
- Consistently with your known wishes, beliefs, and values
- With the least restrictive option to your freedom and dignity
They cannot:
- Make financial or legal decisions (unless also your Attorney)
- Consent to special medical procedures (e.g., sterilisation or termination of pregnancy) without NCAT approval
- Override an Advance Care Directive if one exists
Guardians must also keep records and may be required to report to NCAT if concerns are raised.
When an Enduring Guardianship Takes Effect
Unlike a Power of Attorney, an Enduring Guardianship only activates when you lose capacity—as determined by medical professionals or NCAT.
Importantly, marriage or remarriage automatically revokes an existing Enduring Guardian appointment. If you remarry, you must create a new appointment if you wish to maintain your chosen Guardian.
Example:
A retired man in Sydney is diagnosed with early-stage Alzheimer’s. He appoints his adult son as his Enduring Guardian. While he retains capacity, he makes his own decisions. Once his condition progresses and he can no longer understand treatment options, his son steps in lawfully to arrange care, choose a facility, and consent to necessary treatments—honouring his father’s previously expressed wishes.
Changing or Revoking an Enduring Guardianship
You can revoke or change your Enduring Guardian at any time—as long as you still have legal capacity. To do so:
- Complete a Revocation of Appointment of Enduring Guardian form
- Notify your current Guardian in writing
- Inform relevant parties (e.g., doctors, aged care providers) of the change
We recommend reviewing your appointment every few years or after major health or family events.
Common Mistakes to Avoid
- Using outdated or non-prescribed forms that don’t comply with the Act
- Appointing a paid carer or healthcare provider as Guardian (invalid under law)
- Failing to specify limits, leading to decisions that contradict your values
- Not informing family members, causing confusion or disputes later
- Assuming the role is automatic—without proper witnessing and certification, it’s not legally binding
One client came to us after their handwritten appointment was rejected by a hospital—delaying critical care. Proper legal execution prevents such crises.
Why Choose GJA Law?
- Clear, practical advice tailored to your situation
- Fixed-fee certainty for common matters and transparent time-costed support for complex issues
- Decades of experience across property, estate planning, and family law
- Early adopters of technology to streamline processes and reduce errors
- A client-focused approach that prioritises your goals and peace of mind
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Contact Us
If you are dealing with Powers of Attorney & Guardianship in Sydney, contact GJA Law today. Our experienced lawyers will guide you through the process with confidence and provide the support you need.
Common Appointment of Enduring Guardians FAQs
An Enduring Guardian is legally appointed to make personal, lifestyle, and healthcare decisions for you if you lose capacity (e.g., medical treatment, accommodation). An Enduring Power of Attorney authorises someone to manage your financial and legal affairs. These are separate roles governed by different NSW laws, and we typically recommend establishing both for complete protection.
The appointment only becomes active when you are assessed as lacking the capacity to make your own personal or medical decisions. This determination is usually made by two medical professionals. Until that point, you retain full control over all aspects of your life. The document ensures a seamless transition of decision-making authority without the need for a stressful court application.
You can appoint any adult you trust, such as a family member or close friend. However, NSW law prohibits appointing anyone who provides you with paid care or medical treatment (like your doctor, nurse, or a paid carer) to prevent conflicts of interest. You can also appoint more than one person, specifying if they must act jointly or can act separately.
Your Guardian can make decisions about your healthcare (consenting to or refusing treatment), accommodation (choosing aged care or support services), and personal services (daily care needs). They cannot make financial decisions, consent to certain special medical procedures (like sterilisation) without tribunal approval, or override a valid Advance Care Directive.
Yes, you can revoke or change your appointment at any time as long as you still have legal capacity. This requires completing a formal Revocation form, notifying your current Guardian in writing, and informing relevant parties (e.g., your doctor). It is also automatically revoked if you get married, so a new appointment is necessary after marriage.
If you lose capacity without a valid appointment, an application must be made to the NSW Civil and Administrative Tribunal (NCAT). The Tribunal will then appoint a Guardian for you, who may be a family member or, if no suitable person is available, the NSW Public Guardian. This process can be lengthy, costly, and may result in someone you wouldn’t have chosen making deeply personal decisions for you.
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