Planning ahead is one of the most thoughtful things you can do for yourself and the people who care about you. Appointing an enduring guardian ensures that if you ever lose the capacity to make personal and lifestyle decisions for yourself, someone you trust is already authorised to make those decisions on your behalf.
Whether you are putting arrangements in place as part of a broader estate plan, or a family member has recently lost capacity, and you are navigating what happens next, Coleman Greig’s enduring guardian lawyers in Sydney and across NSW are here to help. We make the process clear, straightforward, and properly documented from the outset.
What Is Enduring Guardianship?
An enduring power of guardianship is a legal document that allows you to appoint a trusted person, known as your enduring guardian, to make personal, health, and lifestyle decisions on your behalf if you lose the capacity to make those decisions yourself. It is governed by the Guardianship Act 1987 (NSW) and is one of the most important documents you can have in place as part of your long-term planning.
It is worth understanding how an enduring guardianship differs from a Power of Attorney. A Power of Attorney deals with financial and legal matters, such as managing bank accounts, paying bills, or dealing with property. A power of enduring guardianship, by contrast, deals with personal, medical, and lifestyle matters. The two documents are complementary and are often prepared together to ensure all areas of your life are covered should you ever need them. Learn more about enduring guardianship on our Plain English Guide.
Who Can Appoint an Enduring Guardian?
An Enduring Guardian is someone you choose to make personal and lifestyle decisions on your behalf when you are not capable of doing this for yourself. If you are over 18 years of age, you can appoint a guardian. You choose which decisions you want your enduring guardian to make (known as functions), and you can give your guardian directions on how to carry out the functions.
What Functions Can You Give Your Enduring Guardian?
You can give your enduring guardian as many or as few functions as you like, and you may also give the guardian directions about how to exercise the decision-making functions you give them. For example, you can direct your guardian to consult with your close friend on each function whenever possible. You can give your guardian a function, for example, to decide where you should live, and direct that they can override your objection to their decision if it is in your best interests to do so.
Common functions people include in an enduring power of guardianship cover decisions about where the person should live, what health care and medical treatment they receive, what support services they access, and what day-to-day activities they participate in. Having clearly documented functions, along with directions about how you would like them exercised, gives your guardian meaningful guidance and reduces the likelihood of uncertainty or family conflict later on.
What an Enduring Guardian Cannot Do
Most importantly, an enduring guardian cannot make a Will for you, vote on your behalf, consent to marriage, manage your finances or override your objections, if any, to medical treatment.
How to Appoint an Enduring Guardian in NSW
To make a valid enduring guardianship appointment in NSW, several requirements must be met. The appointor must be over 18 years of age and must have decision-making capacity at the time of signing. The document must be signed in the presence of an eligible witness, who must not be the person being appointed as guardian. The guardian must also sign a certificate of acceptance, confirming they understand and accept the role.
The form for appointing an enduring guardian is prescribed under NSW law and must meet specific requirements to be legally valid. While a prescribed form is available, having a lawyer prepare or review the document ensures it properly reflects your wishes, includes the right functions, and is executed correctly. A document that is incorrectly prepared or witnessed may not be recognised when it is needed most, which can create significant difficulties for your family at an already difficult time.
When Does an Enduring Guardianship Take Effect?
A common point of confusion is when the appointment actually comes into effect. An enduring guardianship does not give your guardian any authority while you still have the capacity to make your own decisions. It only takes effect when you lose that decision-making capacity.
It is also worth noting that capacity is not always a permanent state. Some conditions, such as dementia, involve a gradual or fluctuating decline, and what constitutes loss of capacity can sometimes be a matter of judgment. If there is ever a dispute about whether a person has lost capacity, or whether a guardian is acting appropriately in exercising their functions, the NSW Civil and Administrative Tribunal (NCAT) has jurisdiction to review the arrangement and make orders where necessary.
Enduring Guardianship vs Power of Attorney: What Is the Difference?
This is one of the most commonly asked questions in this area of law, and it is an important distinction to understand.
A Power of Attorney authorises someone to make financial and legal decisions on your behalf, such as managing your bank accounts, handling property transactions, or paying ongoing expenses. An enduring guardianship, on the other hand, covers personal, health, and lifestyle decisions. Neither document covers both areas, which is why most people benefit from having both in place.
Preparing both documents at the same time, as part of a broader Wills and Estate Planning review, is generally the most practical and cost-effective approach. It ensures that if something unexpected happens, every area of your life has someone authorised to act, and that person is someone you have chosen rather than someone appointed by a tribunal.
How Our Enduring Guardian Lawyers Can Help
Coleman Greig’s enduring guardian lawyers work with individuals and families across NSW to put proper arrangements in place before they are urgently needed. Depending on your situation, we can assist with:
- Advising on who to appoint as your enduring guardian and what functions to include
- Preparing the enduring guardianship document so it is correctly executed and genuinely reflects your wishes
- Preparing complementary documents, including a Power of Attorney and Will, as part of a holistic estate planning review
- Advising family members or prospective guardians on what the role involves and what limitations apply
- Providing advice where a guardianship arrangement is already in place and questions have arisen about how it is being managed
Coleman Greig are available to service your needs no matter where you are located in NSW. Our network of offices are supported by the latest digital technology, enabling us to work with you in a way that suits you best.
Speak With an Enduring Guardian Lawyer Today
Enduring guardianship is one of those arrangements that is far easier to put in place before it is needed than after. Once a person loses capacity, it is too late to make the appointment, and the decisions about their care and lifestyle may fall to a tribunal rather than someone they have chosen and trust.
If you are ready to put arrangements in place, or you simply want to understand your options, our enduring guardian lawyers in Sydney and across NSW are available to assist. Coleman Greig has offices in Parramatta, Norwest, Penrith, and Sydney CBD, and we are equally able to assist clients remotely.
To get started, please contact us directly or find your nearest office at Our Locations. This page is general in nature and is not a substitute for legal advice tailored to your specific circumstances.
