Many people expect that their family and friends will step in and support them in future if their circumstances change and they need increased support and/or assistance with decision-making. In most situations this kind of informal support is enough to manage day-to-day affairs. However, significant decisions may require a source of formal authority for someone to make a decision on your behalf if you’ve lost capacity to do so yourself.
Depending on your circumstances, the following may assist you to plan ahead and ensure you are in control of personal and lifestyle decisions about your life and who will assist you with decision-making should the need arise.
information on powers of attorney (for financial decision-making) is available on the powers of attorney page.
What is an enduring guardian?
An enduring guardian, is a person appointed by you to make important personal and lifestyle decisions on your behalf if you lose decision-making capacity as a result of a disability.
Appointing an enduring guardian enables you to have control over who makes decisions about important lifestyle matters if you lose capacity to make decisions.
Lifestyle matters include:
- your healthcare
- where you live
- the support you receive
An enduring guardianship can also capture important information about your wishes and things you want taken into consideration if or when certain decisions need to be made.
Appointing an enduring guardian/s
To appoint an enduring guardian, you must complete and register an enduring guardianship instrument with the Tasmanian Civil and Administrative Tribunal (via Service Tasmania) and pay the applicable fee.
An enduring guardianship instrument sets out who can make decisions on your behalf if you lose decision-making capacity and any conditions or limitations to their authority that you wish to put in place.
If you give your enduring guardian full authority, they can make decisions about most personal or lifestyle matters. You can choose to limit the types of decisions your enduring guardian makes, for example, to areas such as where you live, your support or healthcare.
You can appoint single or joint guardians. If you appoint more than one person as your guardian, they must act jointly, which means they must reach agreement on any decisions they make on your behalf.
You can also appoint an alternative guardian to make decisions if the original guardian is absent or unable to act.
Duties and responsibilities of an enduring guardian
Guardianship is a big responsibility. All guardians must make decisions and act in a way that reflects the principles of the Guardianship and Administration Act 1995. This means acting in a way that:
- Assists you to carry out your wishes (what you want) as far as possible
- Promotes your best interests
- Is the least restrictive of your freedom to make your own decisions and act as independently as possible
What does acting in my best interests mean?
Acting in your best interests means your guardian will:
- Consult with you when making decisions
- Promote your views and wishes (what you want) as far as possible
- Advocate for you
- Encourage you to participate as much as possible in the community
- Encourage and assist you to become independent and able to make your own decisions
- Take action to protect you from abuse, neglect and exploitation
The Tribunal provide a handbook for enduring guardians (PDF, 387.8 KB) that further outlines the role and responsibilities, along with answers to commonly asked questions.
When does enduring guardianship become 'active' or take effect?
An enduring guardianship instrument must be registered with the Tribunal for the authority to be valid.
Your enduring guardian(s) can only start to make decisions on your behalf in the areas you have given them the authority to, if you lose capacity to make decisions due to the impact of a disability.
If a person who has appointed an enduring guardian loses capacity to make personal and lifestyle decisions, it is good practice for the enduring guardian(s) to obtain a written professional medical opinion about the person’s capacity to make decisions and the need for the enduring guardianship to take effect.
Can I appoint the Public Guardian as my enduring guardian?
No. The Public Guardian is unable to accept appointment as an enduring guardian. If the need for a guardianship decision arises after a person loses capacity to make decisions and they have not appointed an enduring guardian, an application can be made to the Tribunal for the appointment of a guardian.
If you have questions about the role or authority of an enduring guardian you can contact the Office of the Public Guardian for more information. Further information is also available via the links below.