Knowledge Bank
What Is An Enduring Power Of Guardianship?
Quick Answer
An Enduring Power of Guardianship, commonly called an EPG, allows you to appoint one or more trusted people to make personal, lifestyle and treatment decisions for you if you become unable to make those decisions yourself.
An EPG operates during your lifetime only when you cannot make the relevant decision.
It does not operate while you remain able to decide for yourself, and it does not give the guardian authority over your money or property.
If your capacity returns, you resume making your own decisions. When you pass, the EPG ends and the arrangements applying after your passing begin.
Introduction
Financial and property decisions are only one part of planning for a possible loss of capacity.
You may also need someone to make important personal, lifestyle or treatment decisions if you are temporarily or permanently unable to make them yourself.
Those decisions may involve:
- where you live;
- the support and care you receive;
- the people and services involved in your life; and
- health care and treatment.
An Enduring Power of Guardianship allows you to choose the person or people who may make those decisions and the authority they will have.
It must be prepared while you still have full legal capacity to understand the document and the responsibility you are giving to someone else.
How Does An EPG Operate Through Different Stages?
While You Can Make Your Own Decisions
You remain in control of your personal, lifestyle and treatment decisions.
Your enduring guardian does not receive authority merely because the EPG has been signed.
If You Cannot Make A Particular Decision
The enduring guardian may act only when you are unable to make a reasonable decision about a matter covered by the EPG.
Capacity is not always all or nothing.
You may still be able to make some decisions while needing assistance or substitute decision-making for others.
If Your Capacity Returns
The guardian stops making decisions that you are again able to make for yourself.
This can be important where capacity is affected temporarily by an illness, injury, treatment or another changing condition.
After You Pass
The EPG ends immediately.
The enduring guardian no longer has authority. Responsibility for matters after your passing moves to the people and arrangements applying at that stage, including the Executor appointed under your Will.
The person making decisions may change as your circumstances change, but each stage should continue to support the same underlying intentions.
Practical Point
An EPG does not take over your life while you can still make your own decisions.
It is there for the decisions you cannot make, at the times when you cannot make them.
What Decisions Can An Enduring Guardian Make?
The authority depends on what you include in the EPG.
An enduring guardian may be authorised to make decisions about matters such as:
- where you live and who you live with;
- care, support services and assistance;
- health care and treatment;
- education or training;
- work and daily activities;
- who you associate with; and
- access to information needed to make those decisions.
You may give the guardian broad authority or limit the appointment to particular decisions.
The important question is not simply who you appoint, but what decisions you want them to be able to make.
What Can An Enduring Guardian Not Do?
An EPG does not authorise the guardian to:
- operate your bank accounts;
- manage investments;
- buy or sell your property;
- make financial decisions;
- make or change your Will;
- act outside the authority given in the EPG; or
- pass the guardian role to someone else.
Financial and property matters are dealt with through an Enduring Power of Attorney or, where necessary, an administrator appointed by the State Administrative Tribunal.
How Does An EPG Work With An Advance Health Directive?
An EPG and an Advance Health Directive perform different but connected roles.
An Advance Health Directive records your own decisions about particular future treatments.
An EPG appoints someone to make personal, lifestyle and treatment decisions when you cannot decide for yourself.
Where a valid Advance Health Directive applies to a treatment decision, that direction takes priority.
The enduring guardian may make treatment decisions that are not covered by the Directive, provided the EPG gives them that authority.
This allows your own recorded decisions to operate first, with the person you chose able to respond to circumstances you did not specifically anticipate.
Choosing The Right Guardian
The guardian may one day need to make difficult decisions during a stressful period.
The person should be:
- trustworthy;
- willing to accept the responsibility;
- familiar with your values and preferences;
- able to communicate with family, health professionals and service providers;
- available when decisions may be required;
- capable of remaining calm and practical; and
- prepared to support your wishes rather than substitute their own preferences.
The most suitable guardian is not automatically your closest relative.
It is the person best able to understand you and carry out the role responsibly.
Can You Appoint More Than One Guardian?
Yes.
You may appoint one guardian or more than one guardian.
Joint Enduring Guardians
Where more than one enduring guardian is appointed, they act jointly and must agree on decisions.
This can provide shared responsibility, but it is important that the people appointed can communicate and work together.
Substitute Enduring Guardians
You may also appoint one or more substitutes to step in under the circumstances stated in the EPG if a primary guardian cannot continue.
A substitute can help avoid a gap in decision-making authority if the first appointment is no longer available.
What Responsibility Does The Guardian Have?
An enduring guardian must act within the authority given by the EPG and in your best interests.
They should:
- involve you in decisions as much as possible;
- consider your wishes, values and preferences;
- support you to make any decisions you remain able to make;
- obtain the information needed to make an informed decision;
- respect important personal, family and cultural relationships; and
- work constructively with your attorney, family and care providers where appropriate.
If there is uncertainty, disagreement or concern about how the EPG is operating, the State Administrative Tribunal can consider the matter and make appropriate orders.
What Happens If You Do Not Have An EPG?
The outcome depends on the decision that needs to be made.
For some treatment decisions, the law provides an order of people who may be asked to decide if there is no applicable Advance Health Directive or authorised guardian.
For personal and lifestyle matters, families and service providers may sometimes manage by agreement without a formal appointment.
However, where legal authority is needed or people cannot agree, an application may need to be made to the State Administrative Tribunal for a guardian to be appointed.
That person may not be the person you would have chosen yourself.
Preparing an EPG while you have capacity allows you to make that choice in advance.
Different Authority At Different Stages
Helen appoints her daughter, Sarah, as her enduring guardian.
While Helen remains able to make her own decisions, Sarah has no authority to take over. Helen continues choosing where she lives, what support she receives and what treatment she accepts.
Several years later, Helen has a stroke and temporarily cannot make decisions about rehabilitation and care.
Sarah acts under the EPG for those decisions and consults Helen as far as Helen is able to participate.
As Helen recovers, she resumes making the decisions she can again make for herself.
When Helen later passes, Sarah’s authority as enduring guardian ends. The Executor appointed in Helen’s Will then becomes responsible for the estate.
The decision-maker changed as Helen’s circumstances changed, but the plan continued without an avoidable gap in authority.
Common Mistake
“Once my EPG starts, my guardian makes every decision for me.”
An enduring guardian can act only for matters covered by the EPG and only when you are unable to make the particular decision yourself.
You should remain involved, and continue making every decision you are still able to make.
Frequently Asked Questions
Can An EPG Operate Immediately?
No.
Unlike an immediately operating Enduring Power of Attorney, an EPG does not give the guardian authority while you remain able to make the relevant decision yourself.
It operates only when you lack capacity for a matter covered by the EPG.
Can The Same Person Be My Attorney And My Guardian?
Yes.
The same trusted person may be appointed to both roles, but the appointments must be made in separate documents.
You may also choose different people where their skills and relationships suit the roles differently.
Does An EPG Replace An Advance Health Directive?
No.
An Advance Health Directive records your own treatment decisions and takes priority where it applies.
An enduring guardian may deal with decisions not covered by the Directive if the EPG gives them that authority.
Can I Change Or Revoke My EPG?
Yes, while you retain full legal capacity.
The guardians, substitutes, health professionals and organisations holding copies should be told, and outdated copies should be recovered or clearly withdrawn where possible.
Does An EPG Continue After I Pass?
No.
The EPG and the guardian’s authority end immediately when you pass.
The Will and the people appointed to deal with matters after your passing then take over their respective roles.
Final Thoughts
An Enduring Power of Guardianship allows you to choose who may make personal, lifestyle and treatment decisions if you cannot make them yourself.
It does not remove your independence while you retain capacity, and it should not give another person more authority than the circumstances require.
While you can decide, you remain in control. If you temporarily or permanently lose the ability to make a particular decision, the enduring guardian may act. If capacity returns, you resume that responsibility. When you pass, the EPG ends and the next stage of the plan begins.
The authority changes with your circumstances, but the purpose remains the same: allowing your values and considered intentions to continue guiding the decisions made for you.