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Enduring Guardian

Appointing an Enduring Guardian authorises a person (donee) to exercise certain functions in respect of the person who appointed the Enduring Guardian (donor).

Appointment of the Enduring Guardian must be made by a written instrument in which all terms and conditions of the Enduring Guardianship are specified.

Why Do I Need An Enduring Guardian?

What distinguishes an Enduring Guardian from say, a guardian for a child, is that it is only applicable for persons aged 18 years and over. It will be operative should the donor be unable to manage him/herself as a result of a mental disability or illness.

Some of the benefits of an Enduring Power of Attorney are best illustrated by an example: Consider Mr Brown and Mrs Brown. Assume that one day Mr Brown drove home and was involved in a car accident. He was severely injured, both physically and mentally. As a result, Mr Brown sustained a traumatic brain injury and is incapable of looking after himself.

Mrs Brown works full-time and wants to move Mr Brown to a nursing home so he will have professional care 24 hours a day. However, Mr Brown’s parents and brother disagree with Mrs Brown’s choice and believe that she, as Mr Brown’s wife, should be responsible for looking after Mr Brown.

His mother believes that Mr Brown should remain living in the marital home and asks Mrs Brown to reduce her work load to part-time so she can attend to Mr Brown. The parents have offered to look after Mr Brown when Mrs Brown is at work. As Mr Brown’s parents are elderly, they believe they are not strong enough to look after Mr Brown 24 hours a day and so they have not asked that Mr Brown live with them.

In such case, who is to decide where Mr Brown is to live, what kind of health care he is to receive?

The Benefits Of An Enduring Guardian

The problems which emerge in the example could have easily been overcome by Mr Brown executing an Appointment of an Enduring Guardian in Mrs Brown’s favour.

Mrs Brown would have been able to decide where Mr Brown was to live, what health care he should receive, any other services he should receive and consent to any medical or dental treatment he needed.

Furthermore, Mr Brown may have elected different persons to exercise different functions.

For example, with respect to deciding where he should live, deciding what healthcare he should receive and giving consent to medical or dental treatment, Mr Brown could have nominated his parents jointly and with respect to what other services he should receive he could have nominated Mrs Brown.

In this example the effect of the Enduring Guardian would be to prevent family arguments as to Mr Brown’s welfare and enable his welfare to be controlled by someone he knows and trusts. In such a scenario, it would be disastrous if a family not only had to deal with such a tragic accident, but also disagreed on various decisions regarding his welfare.

Unfortunately, in life, these situations do occur.

Whilst and Enduring Power of Attorney handles your financial assets: an Enduring Guardian protects your welfare.

Download the Enduring Guardian Application form