Enduring Guardian

An enduring guardian is a person appointed by you to make decisions on your behalf in respect of what are termed “lifestyle issues”. This includes such things as giving consent to operations or medical treatment and to the cessation of medical treatment and intervention if it is unnecessarily prolonging or sustaining your life.

The document appointing an enduring guardian grants power to make decisions on your behalf if at any time you suffer from:

• an advanced malignant disease
• severe immune deficiency
• an advanced degenerative disease of the nervous system
• severe and lasting brain damage due to injury, stroke or disease or dementia.

If you have become unable to participate effectively in decisions regarding your medical care, your guardian can make decisions as to whether you should be subjected to medical intervention or treatment which is aimed at prolonging your life; as to whether any distressing symptoms be fully controlled by appropriate analgesic or other treatment.

For the power to become effective, your medical condition is to be assessed by two independent physicians; one of whom is a consultant. They must both be of the opinion that you are unlikely to recover from your illness or impairment resulting in severe distress and an incapacity for rational existence.

The instrument appointing your guardian authorises your guardians to exercise the powers of the guardian under section 25 of the Guardianship and Administration Act. That section provides:

Part 4 - Guardianship Orders

Division 3 - Powers and duties of guardian

25. Authority of full guardian

1. A guardianship order appointing a full guardian confers on the full guardian in respect of the represented person all the powers and duties which the full guardian would have in Tasmania if he or she was a parent and the represented person his or her child.
2. Without limiting subsection (1) an order appointing a full guardian confers on the person named as full guardian the power –
   • to decide where the represented person is to live, whether permanently or temporarily; and
   • to decide with whom the represented person is to live; and
   • to decide whether the represented person should or should not be permitted to work and if so –
     • the nature or type of work; and
     • the person for whom the represented person is to work; and
     • any related matters; and
   • to restrict visits to a represented person to such extent as may be necessary in his or her best interests and to prohibit visits by any person if the guardian reasonably believes that they would have an adverse effect on the represented person;
   • except as provided in Part 6, to consent to any health care that is in the best interests of the represented person and to refuse or withdraw consent to any such treatment.
3. Where a decision is made, action taken, consent given or act done by a full guardian, the decision, action, consent or act has effect as if it had been made, taken, given or done by the represented person and the represented person had the legal capacity to do so.
4. A full guardian may, on behalf of a represented person, sign documents and do all such things as are necessary to give effect to any power or duty vested in the guardian.

The appointment of an enduring guardian is intended to be a permanent one and is to continue until your death. It can, however, be revoked by you at any time by a simple deed of revocation.

Should you have any queries regarding the appointment of a guardian, please contact James Walker or one of our other staff who will be happy to assist you.