Page Contents
1. What is an enduring power of guardianship?
2. What powers does it give?
3. What are the legal formalities?
4. Who can I appoint?
5. Can I change my appointed guardian?
6. When does it cease?
7. What if I become mentally incapacitated
and don’t have a proposed guardian?
8. From whom can we obtain advice?
9. From where can I obtain a form?
1. What is an enduring power of guardianship?
An enduring power of guardianship is a legal document that authorises another person to make personal and lifestyle decisions on your behalf.
The person making the enduring power of guardianship is called the appointor. The appointed person is called the proposed guardian until the guardianship takes effect. Once the guardianships takes effect, the person is called the guardian.
The guardianship takes effect if and when you become incapacitated. The incapacity can be temporary, for example, due to injury, or permanent, for example, due to intellectual disability.
2. What powers does it give?
The powers given to your guardian can be as extensive or as restrictive as you choose. For example, they may be responsible for all your lifestyle decisions, such as where you live, whom you live with, where you work, who can visit you, and what health care you receive. Alternatively, they may be responsible for only some decisions, such as whom you live with.
Your guardian is obliged to act in your best interests. Take the time to make sure they are aware of your personal views and desires, so they can take account of them when making decisions on your behalf.
If you don’t specify the powers you wish to confer on your guardian, their power automatically defaults to that of a parent over their child. Such powers include making personal day-to-day decisions as well as decisions about accommodation, general lifestyle and employment. You can also give the person the power to make decisions about your medical treatment, except when an enduring power of attorney (medical) has also been signed.
Your guardian cannot allow you to be sterilised, have a pregnancy termination, or participate in medical research and organ transplants. Permission for these procedures must be sought from the Victorian Civil and Administrative Tribunal.
3. What are the legal formalities?
For an enduring power of guardianship to be valid, both the appointer and the proposed guardian must
- be at least 18 years of age
- have sufficient mental capacity to fully understand the nature and meaning of the enduring power of guardianship documents.
The form for an enduring power of guardianship has two parts: one authorising the appointment of a guardian, and the other accepting the appointment.
Both forms must be signed in the presence of two witnesses. Neither witness can be related to the appointer or the proposed guardian. One witness must be authorised by law to witness the signing of statutory declarations (see glossary).
4. Who can I appoint?
Your proposed guardian can be a relative or friend. However, they cannot be someone who is being paid or may be paid in the future to provide you with day-to-day care, housing or medical care, such as the manager of a nursing home or a paid companion/carer.
You can appoint an alternative guardian to be a back-up person should your proposed guardian die or become incapacitated. However, the alternative guardian cannot care for you jointly with the first guardian, because you can only have one guardian acting at a time.
5. Can I change my appointed guardian?
You can revoke (cancel) an enduring power of guardianship by making a new enduring power of guardianship, or completing a revocation of appointment form. The revocation form must be witnessed in the same way as the appointment form.
You can revoke an enduring power of guardianship appointment only if you are mentally capable. If you are not mentally capable, only the Victorian Civil and Administrative Tribunal can revoke a guardianship. Generally, they will revoke a guardianship only if the guardian wants to resign or has been negligent, incompetent or not acting in your best interests.
With reasonable grounds, it is possible for a third party to apply to the Victorian Civil and Administrative Tribunal to have a guardian revoked.
6. When does it cease?
An enduring power of guardianship is revoked (cancelled) when
- you or your guardian dies
- your guardian becomes legally incapacitated and there is no alternative guardian.
7. What if I become mentally incapacitated and don’t have a proposed guardian?
Generally, your family or friends will make decisions about where and how you live. The Victorian Civil and Administrative Tribunal can only intervene and appoint a guardian if they believe it is in your best interests to do so. For example, they might appoint a guardian if they think you may be seriously disadvantaged or mistreated, or if there is conflict about decisions regarding your welfare.
8. From whom can we obtain advice?
The Victorian Civil and Administrative Tribunal is responsible for advising guardians, attorneys and agents, and providing direction and opinion about their role and the scope and powers of their appointment.
The Office of the Public Advocate provides information and advice about all guardianship and power of attorney matters.
9. From where can I obtain a form?
You can obtain paper copies of the enduring power of guardianship form and the revocation form from larger newsagencies, law stationers, lawyers and the Office of the Public Advocate. Alternatively, you can download a form using this link. www.publicadvocate.vic.gov.au
Next Section: Enduring Power of Attorney (Financial)
