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Enduring Power of Guardianship frequently asked questions

If I make an enduring power of attorney and an enduring power of guardianship, can I appoint the same person to be both my attorney and enduring guardian?

It is possible to appoint the same person to be your attorney and your enduring guardian, however each appointment would need to be made using the correct form. An Enduring Power of Attorney form must be completed to appoint your attorney and an Enduring Power of Guardianship form must be completed to appoint your enduring guardian.

Where can I get help to make an enduring power of guardianship?

The Enduring Power of Guardianship form is a straight-forward document that most people will be able to complete without legal or other assistance. The Office of the Public Advocate has produced a guide and kit which explain what an Enduring Power of Guardianship is and provide step-by-step instructions on how to complete the form. A sample of a completed form is also available as a reference. If you require further assistance, you can speak to an advisory officer from the Office of the Public Advocate's Telephone Advisory Service.

By completing an Enduring Power of Guardianship you will be making important decisions about your future. It is recommended that you complete the form when you have adequate time to fully consider each section, in a quiet and comfortable setting.

Can a person with a decision-making disability make an enduring power of guardianship?

To be able to make an enduring power of guardianship the adult must have ‘full legal capacity’. This means the person must know and understand:

  • What an enduring power of guardianship is and what authority it will give to someone else
  • that an enduring power of guardianship will give the enduring guardian authority to make decisions in relation to their medical treatment, and other personal and lifestyle decisions such as where they will live and what support services they will have.

Adults with impaired decision-making abilities, such as those with a psychiatric condition, dementia, an intellectual disability or an acquired brain injury may not be able to execute an enduring power of guardianship.

In the case of people with a mental illness, the issue of capacity can be complex particularly if their ability to make reasoned decisions fluctuates with the severity of their illness. 

Any doubt about the person’s capacity to make the document could result in the State Administrative Tribunal finding the enduring power of guardianship invalid, and as a consequence it could be revoked.

What should I do if there is doubt about my capacity to make an enduring power of guardianship?

If you are considering making an enduring power of guardianship but your capacity to do so might be questioned, you are advised to seek the opinion of at least one doctor qualified to assess your capacity to determine if you have capacity to make the document.

There is no specific capacity assessment in relation to an enduring power of guardianship and it will be up to the health professional assessing your capacity to decide which test is suitable.

When seeking this opinion, you should advise the doctor of your intention to make an enduring power of guardianship and request a written report of the assessment which clearly states whether or not you have capacity. 

If you require an assessment of your capacity and English is not your first language, it is recommended you have an accredited interpreter attend the assessment with you.

If you are assessed as having full legal capacity it is advisable:

  • that the doctor, who made the assessment, be one of the two people who witnesses your enduring power of guardianship;
  • that you make the enduring power of guardianship as soon as possible after having the capacity assessment; and
  • that you keep the copy of the doctor’s assessment of your capacity with the enduring power of guardianship to ensure that everyone is aware that you had capacity to make it.

If you are assessed as not having capacity, you will be unable to make an enduring power of guardianship.

I know I have a condition which means I lose capacity at some times, but then regain capacity. What will happen if I make an enduring power of guardianship?

In some situations someone’s ability to make reasoned decisions may fluctuate depending on the severity of their condition, for example if the person has a mental illness. In these circumstances, your enduring guardian is able to assume decision-making responsibility during times when you are unable to make decisions for yourself, and then when you recover your enduring guardian will stop making decisions as you are able to make these for yourself.

If this is a situation which you might be in this is something which could be clarified in the directions of your enduring power of guardianship. For example, you might include the direction: “I have been diagnosed with clinical depression and want my enduring guardian to act when my doctor states I lack capacity.”

 What happens if there is doubt over my capacity to continue making decisions for myself?

If there is uncertainty over your capacity to make decisions for yourself, your general practitioner should be asked to make an assessment of your capacity or to provide a referral to an appropriate specialist for an assessment of your capacity. 

If the situation is still unclear, an application should be made to the State Administrative Tribunal for a decision about your capacity.

In some cases the State Administrative Tribunal might decide that while you are still capable of making certain types of decisions, you are no longer able to make reasoned judgements about other aspects of your life. For example, the State Administrative Tribunal may decide that you are capable of deciding where you should live but not about the medical treatment you should receive.

What are the witnessing requirements when making an enduring power of guardianship?

When making an enduring power of guardianship your signature and the signature of any person you are appointing as your enduring or substitute enduring guardian must be witnessed by two people.

Both witnesses must be at least 18 years of age and have full legal capacity. One of the witnesses must also be a person authorised to witness statutory declarations under the Oaths, Affidavits and Statutory Declarations Act 2005. Any person named in the enduring power of guardianship cannot witness the signatures of other persons named in the enduring power of guardianship.

When witnesses are giving address details, a street address is preferable to a post office box. This address can be the place of business or employment.

What role does a witness play?  

The role of the witness is to verify the identity of the person signing the document. The witness is not responsible for assessing the capacity of the person making the enduring power of guardianship, however should the witness have concerns about the capacity of the person making the enduring power of guardianship, he or she may wish to consider whether they will witness the document.

Can an enduring guardian delegate their authority to someone else (for example, can they ask someone else to carry out the role of enduring guardian for them while they’re on holiday)?

No, an enduring guardian does not have the power to nominate someone else to carry out the role of enduring guardian for them. If an enduring guardian is unable to fulfil his or her responsibilities they may resign from the position. If the appointor has capacity, the enduring guardian should advise the appointor he/she is resigning and return any personal documents and copies of the enduring power of guardianship. In this situation the appointor may choose to make a new enduring power of guardianship with a different enduring guardian.

If the appointor has lost capacity, the enduring guardian will need to apply to the State Administrative Tribunal to be removed from the role, and for an alternative decision-maker to be appointed if required.

My son/daughter has an intellectual disability/acquired brain injury and lacks capacity. Can I appoint myself or someone else as their enduring guardian?

Many people wish to put safeguards in place for adult children with a decision-making disability to ensure they are protected against abuse or neglect. However, it is not possible to make an enduring power of guardianship on behalf of another person, so this cannot be used as part of preparing for their future.

If a person with a decision-making disability does not have capacity to make an enduring power of guardianship then other processes will need to be followed if decisions need to be made about personal, lifestyle and treatment matters.

What are the other processes for someone who cannot make an enduring power of guardianship?

When a treatment decision is needed the Guardianship and Administration Act 1990 gives a list of people who can make a treatment decision on behalf of the person who does not have capacity without someone having to be formally appointed as a guardian.

This list works as a hierarchy, and the treating health professional must get a decision from the first person in the hierarchy who:

  • Is at least 18 years of age
  • Has full capacity
  • Has a close personal relationship with the person; and
  • Is reasonably available and willing to make the decision.

A copy of the hierarchy is available as a PDF for download.

For other types of personal and lifestyle decisions there is no list, but if informal processes are working well, everyone agrees about the decisions which need to be made and everybody agrees with a decision then there is no need for anyone to be formally appointed as guardian to make the decisions.

In the Guardianship and Administration Act 1990 this ‘informal process’ is called the ‘least restrictive alternative’ as it is allowing the right decisions to be made for the person without any guardianship order being made.

What will happen if the informal processes break down?

Sometimes the informal processes break down because people do not agree about what needs to happen, people are not available to make decisions or a family member knows that if they make a decision the person with a decision-making disability does not agree with it will cause distress in the family.

In these circumstances an application to the State Administrative Tribunal would need to be made for the appointment of a guardian.

I have already made an enduring power of attorney. Can I change this so that my attorney can also make personal, lifestyle and treatment decisions?

No. By making an enduring power of attorney you are appointing a person to make property and financial decisions on your behalf. The role of attorney is limited to this area, therefore it is not possible to change your enduring power of attorney to enable the attorney to make lifestyle type decisions.

However, if you want your attorney to also be your enduring guardian you can make an enduring power of guardianship and appoint them to make personal, lifestyle and treatment decisions.

Do I continue in my role as enduring guardian when the person who appointed me dies?

No, an enduring power of guardianship ends on the death of the appointor. This means that your role as enduring guardian ends immediately on the death of the appointor. At this point the provisions of the person’s Will take over.

If you are the executor of the person’s Will any actions you carry out will be in your role as executor of the Will and not as the enduring guardian.

Where can I find the Enduring Power of Guardianship form in a version I can type into?

The format for the Enduring Power of Guardianship form is contained within the Guardianship and Administration Regulations 2005, which can be found at the State Law Publisher’s website where it can be downloaded as a word document.

What happens if I divorce or separate from the person I appointed as my enduring guardian?

Separation or divorce will not affect the validity of an Enduring Power of Guardianship.

An appointor who wants their Enduring Power of Guardianship to continue, does not need to take any action.

An appointor who no longer wants their former spouse or de facto partner to be their enduring guardian, will need to revoke the Enduring Power of Guardianship.

If the parties have separated or divorced and the appointor does not have capacity, an interested party may apply to the Tribunal for a decision on whether the EPG should continue to operate.

If I get married or start a de facto relationship, does my existing enduring power of guardianship become invalid?

No. Marriage or a de facto relationship does not affect the validity of an Enduring Power of Guardianship.

An appointor who gets married or starts a de facto relationship, but wants their existing Enduring Power of Guardianship to continue, does not need to take any action.
An appointor who wants their spouse or de facto partner to be their enduring guardian, rather than the person/s they previously appointed in an Enduring Power of Guardianship, will need to revoke the Enduring Power of Guardianship and make a new Enduring Power of Guardianship appointing their spouse or de facto partner.

Last updated: 1-Dec-2016

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