Why you need an Enduring Guardianship in NSW

An illness or injury resulting in the temporary or permanent loss of capacity can happen at any time in our lives. And when it does, are you confident that someone will make the right decision as regards to your overall wellbeing?

An Enduring Guardianship in NSW enables you to legally appoint someone to make personal decisions for you when you lose capacity. Your enduring guardian can decide about your lifestyle living arrangement, and treatments when you can no longer make these decisions yourself.

What is Enduring Guardianship in NSW

An Enduring Guardianship in NSW is an important part of your Estate Plan. It’s complementary to your Power of Attorney, and ensures you are taken care of when you have:

  • an intellectual, physical, psychological or sensory disability
  • a mental illness as defined in the Mental Health Act 2007(NSW)
  • any other disability that impairs or inhibits your decision-making
  • become too old to manage your well-being

Your Enduring Guardian can be authorised to make decisions about on the following:

  • where you should live
  • personal and support services you should use
  • healthcare, medical and dental treatments you should receive
  • whether restrictive practices are appropriate for your circumstance

However, your Enduring Guardian cannot make financial or legal decisions on your behalf. For this, you need to appoint an attorney through a Power of Attorney. You have the option to appoint the same person as your enduring guardian and attorney. Thus, you can give someone the decision-making powers for both your financial and lifestyle matters.

Your Enduring Guardianship can only take effect once you have lost the capacity to make your own decisions. Hence, you will still have control over your personal and lifestyle matters as long as you have capacity.

Moreover, your Enduring Guardianship will only be effective during your period of incapacity. It can be revoked or cancelled when:

  • you are capacitated or when you can make your own decisions again
  • your Guardian resigns, dies or is unable to conduct the role
  • the appointment is changed or revoked by the Guardianship Division of NCAT or the Supreme Court
  • you get married (automatic revocation)
  • you passed away

When to appoint an Enduring Guardianship in NSW

You must prepare and lodge your Enduring Guardianship in NSW while you still have capacity to make the appointment. When you have lost your capacity to appoint an enduring guardian, the NSW Civil and Administrative Tribunal (NCAT) Guardianship Division will do it for you.

Under the Guardianship Act 1987, NCAT can appoint, confirm, revoke or change the functions in a guardianship. Any of your family members or concerned friends may apply or suggest someone to be your Enduring Guardian.

To make a guardianship order, the Tribunal must be satisfied that:

  • the appointor has a disability that affects their decision-making
  • the disability results in the person being partially or wholly incapable of managing themselves
  • there is a current need for someone else to make personal decisions for them the appointor

However, if no one is suitable or willing to take on the role, NCAT can appoint the NSW Public Guardian. NCAT can also make a guardianship order when someone requests a review of an existing appointment.

enduring guardianship in NSW

Who to appoint as an Enduring Guardian

You can appoint anyone to be your Enduring Guardian if they:

  • are aged 18 and over
  • understand the nature and effect of the Enduring Guardianship document
  • are willing and able to take on the role

Your Enduring Guardian can be your spouse or de facto partner, close friend, or someone who:

  • can make decisions in difficult and emotional circumstances
  • understands your needs, wishes, values and beliefs
  • is easy to contact when decisions need to be made
  • understands they will not be paid to undertake this role
  • you completely trust to make decisions on your behalf

However, you cannot appoint someone (or anyone related to that someone) who provides you with:

  • professional treatment or healthcare for a fee
  • your paid accommodation
  • any support services you pay for

In addition, you can choose more than one (1) person to be your Enduring Guardian. Your Multiple Enduring Guardians may act:

  • Jointly – have the same decision-making areas and need to agree and act together when making decisions.
  • Severally – can make decisions separately or without needing to agree or act together on the same or different decision-making areas and have different responsibilities.
  • Jointly and Severally – appointed with the same decision-making areas and can work together or separately when they make decisions for you.

More importantly, you can choose and limit the functions of your Enduring Guardian. You may provide specific instructions for what your Enduring Guardian can and cannot do.

Further, you can appoint a Substitute Enduring Guardian for when your original guardian is no longer able to make decisions for you. If you have not appointed a substitute and your Enduring Guardian can no longer take on the role, NCAT will appoint one for you.

Conclusion

We live in a time of confusion and uncertainty, and it is important to be prepared for whatever the future brings. Moreover, it is in our best interest to ensure we are well taken care of when we can no longer take care of ourselves.

Appointing an Enduring Guardian in NSW might seem straightforward, but there are considerations that must be made before making the appointment. For example, you must consult with your doctor or health professional as regards your future medical treatment. You can also ask for clarification on medical terms and various medical conditions and available treatments.

More importantly, you need to seek legal advice to ensure you understand the nature and effect of an Enduring Guardianship. Moreover, guidance from experienced lawyers can give you a better understanding of what is best for you and your situation.

VC Lawyers can help you protect your best interests and prepare for the unforeseen future. We offer practical legal advice on Enduring Guardianship and can help with the preparation and lodgment of your appointment.

Our solicitors have extensive experience as regards powers of attorney, guardianship, advanced health care directives, and probates and administration in Australia. We can help you determine the best legal options available for your circumstance. Thus, you and your loved ones can have peace of mind on your future wellbeing.

Talk to us to find out how we can help you prepare and lodge your Enduring Guardianship in NSW.

NB: This blog post is neither a legal advice nor intended to be such, and is only for general information. The same should not also be taken as a financial or commercial advice. The reader must personally consult their professional adviser/s on the contents of this blog post. VC Lawyers is not liable for any loss or damage, direct or consequential, as a result of the reader’s or a third person’s misconstruction of the wordings or use/misuse of the contents of this blog post.

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Pelagio Palma Jr., BA, LLB, LLM, MBA

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16 February 2026 No Comments

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