Enduring Guardianship is a legal arrangement that allows you to appoint one or more trusted individuals (your enduring guardians) to make personal, health, and lifestyle decisions on your behalf if you ever lose the mental capacity to do so.
This could happen due to illness, dementia, or other conditions that impair your decision-making abilities.
Your enduring guardian might be responsible for decisions about where you live, what medical treatments you receive, and the kinds of support services you access.
Enduring Guardianship is distinct from an Enduring Power of Attorney, which specifically covers financial and property-related decisions.
How Does Enduring Guardianship Differ from a Power of Attorney?
Here’s a table outlining the key differences between Enduring Guardianship and a Power of Attorney:
| Enduring Guardianship | Power of Attorney | |
| Scope of Decisions | Personal, lifestyle, and medical decisions (e.g., where you live, healthcare treatments, support services) | Financial and property decisions (e.g., managing bank accounts, paying bills, buying/selling assets) |
| Activation | Only takes effect if you lose mental capacity to make decisions | Can be activated immediately or at a specified time/event |
| Type of Document | Enduring Guardianship Appointment | Enduring Power of Attorney |
| Governing Authority | Guardianship and Administration Act 2000 (QLD) | Powers of Attorney Act 1998 (QLD) |
Who Can Be Appointed as an Enduring Guardian?
There are specific eligibility requirements for who can be appointed as an Enduring Guardian.
The chosen individual must be an adult (18 years or older) who has the capacity to make their own decisions.
Additionally, they should be someone you trust completely, as they will have significant power over your personal and health matters. It’s common to appoint a close family member, friend, or trusted advisor.
Importantly, a paid carer cannot usually be appointed as your Enduring Guardian, as this presents a potential conflict of interest.
Also read: How Statutory Will Can Legally Change Your Will
What Powers Can Be Granted to an Enduring Guardian?
An Enduring Guardian can be granted a range of powers concerning your personal and health matters. These can include decisions about:
- Where you live: Determining your place of residence, such as your home, aged care facility, or with a family member.
- Healthcare: Consenting to medical, dental, or other health-related treatments, including decisions about life support or palliative care.
- Lifestyle: Making choices about your daily life, such as your diet, activities, clothing, social interactions, and cultural or religious practices.
- Services: Deciding on the types of support services you receive, including home care, disability services, or respite care.
Also read: How to Make an Advance Health Directive in QLD
When Does Enduring Guardianship Take Effect?
Enduring Guardianship in Queensland only takes effect when you lose the capacity to make your own personal, health, and lifestyle decisions. This capacity is determined by a qualified health professional, such as a doctor.
Until the loss of capacity is confirmed, you retain the right to make your own decisions. The enduring aspect of guardianship means that it continues to be valid even if your capacity fluctuates– your Enduring Guardian steps in when you need them and your decision-making power returns when possible.
Can an Enduring Guardianship Be Revoked or Changed?
Yes, you can revoke or alter your Enduring Guardianship in Queensland provided you retain the mental capacity to do so.
To fully revoke the appointment, you must complete a Revocation of Enduring Document form. Should you wish to modify your appointed guardian(s) or adjust the scope of their decision-making powers, you’ll need to create a new Enduring Guardianship Appointment that supersedes the previous one.
To ensure the legal validity of any changes or revocations, it’s highly recommended that you consult a will lawyer and adhere to the established procedures.
What Are the Responsibilities of an Enduring Guardian?
An Enduring Guardian in Queensland has significant responsibilities when they act on behalf of the person they are appointed to represent. Here are the key duties:
- Act in the best interests of the person: The Enduring Guardian must always prioritise the well-being and interests of the person they represent, putting those needs above their own.
- Follow any advance directives: The guardian must respect and implement any previously expressed wishes or Advance Health Directives outlined by the person they represent.
- Consult and consider opinions: The guardian should take into account the views of the person they represent, involving them in decision-making whenever possible. They should also consult with family members, healthcare providers, and other relevant individuals.
- Promote independence and dignity: The guardian must uphold the represented person’s right to make their own choices to the greatest extent possible, fostering their autonomy and maintaining their quality of life.
- Avoid conflicts of interest: The guardian must not let their personal interests or benefits influence their decisions for the person they represent.
How Is an Enduring Guardian Held Accountable?
There are several mechanisms in place to ensure that an Enduring Guardian acts responsibly and in the best interests of the person they represent.
The Enduring Guardianship document itself can include specific instructions or limitations on their powers.
The represented person’s family members or concerned individuals can raise complaints with the Public Guardian, who has the power to investigate potential misconduct.
Ultimately, the Queensland Civil and Administrative Tribunal (QCAT) has the authority to review an Enduring Guardian’s decisions, revoke their appointment if necessary, and even order compensation if they have misused their power.
This system of safeguards aims to protect those who may be vulnerable and ensure Enduring Guardians fulfill their duties ethically.
What Happens if There Is No Enduring Guardianship in Place?
In Queensland, if a person loses mental capacity and has not appointed an Enduring Guardian, the following steps typically occur:
- Assessment: A medical professional assesses the individual to determine their capacity to make personal, health, and lifestyle decisions.
- Application to QCAT: If necessary, a family member, friend, or the Public Guardian may apply to the Queensland Civil and Administrative Tribunal (QCAT) to appoint a guardian and potentially an administrator for financial matters.
- QCAT Appointment: QCAT carefully considers who is best suited to act as the guardian, prioritising the individual’s best interests, close relationships, and relevant expertise. If nobody suitable is available, the Public Guardian may be appointed as a last resort.
Consequences of No Enduring Guardianship:
- Loss of Control: The person who lost capacity won’t have a say in who makes decisions for them.
- Potentially Unsuitable Guardian: The appointed guardian might not be someone the person would have chosen themselves.
- Delays and Costs: The QCAT process can be time-consuming and involve legal fees.
Importance of Planning Ahead: Having an Enduring Guardianship in place allows you to choose who you trust to make decisions on your behalf and ensure your wishes are respected should you ever lose capacity.
Walker Pender Supports Client with Enduring Guardianship Planning
Our client, a 62-year-old woman recently diagnosed with Multiple Sclerosis, sought our expertise to establish a comprehensive Enduring Guardianship plan.
Recognising the potential impact of her condition on her future decision-making abilities, she wanted to proactively ensure her wishes would be honored.
We carefully reviewed our client’s circumstances, values, and preferences. We guided her in selecting a trusted individual to serve as her Enduring Guardian, and thoroughly outlined the scope of powers granted.
We ensured the document included detailed instructions, providing clear direction for future medical, lifestyle, and personal choices. Our team’s meticulous approach resulted in an Enduring Guardianship plan that offers our client peace of mind.
Secure Your Future Choices with Enduring Guardianship
Planning for potential changes in decision-making capacity is essential. Enduring Guardianship empowers you to appoint someone you trust to advocate for your well-being if you’re ever unable to do so yourself.
Walker Pender’s experienced team will guide you through every step of creating a personalised Enduring Guardianship plan that reflects your unique wishes and values. Contact us today to gain peace of mind knowing your future is in trustworthy hands.
