ENDURING POWER OF GUARDIANSHIP

Philip Grano, Legal Officer, Office of the Public Advocate

Authority
Revocation
Advice

An enduring power of guardianship is a written instrument by which one person (the "appointor") appoints another person to be their enduring guardian, giving them the authority to make personal or lifestyle decisions on their behalf, if they become unable to make those decisions themselves by reason of a disability (s.35B Guardianship and Administration Act 1986) ("GAA").

For it to be a valid document, both the appointor and the proposed guardian must be at least 18 years of age (ss.35A(1) & (3)), and it must be in the form provided in Schedule 4 of the GAA, which includes the appointment, acceptance and witnessing of the appointment and acceptance.

The execution of the document must be witnessed by two people, neither of whom is a party to the document or related to a party to the document, and one of whom must be authorised by law to witness the signing of a statutory declaration (s.35A(2)).

The proposed guardian cannot be someone professionally involved in the care or treatment of the appointor, or in their accommodation (s.35A(4)), and if after their appointment the enduring guardian becomes so involved, the appointment lapses (s.35A(5)).

You can appoint an alternative enduring guardian who can act if the guardian is absent, dies or becomes incapacitated. You cannot appoint joint enduring guardians or joint alternative enduring guardians.

Authority

The scope of the authority that the enduring guardian has depends on what powers and limitations the appointor specifies in the document (s.35B(1)), but if the appointor makes no specification, the enduring guardian has the authority equivalent to that of a parent over their child (ss.24 and 35B(2),(3)).

The document does not give the enduring guardian the power to consent to any special procedure (s.35B(4)), or to refuse treatment under the Medical Treatment Act 1988 (Vic) ("MTA") (see: "Consent to medical treatment" in Chapter 16*6 Guardianship and Administration). The enduring guardian must exercise their authority in the best interests of the appointor (s.35B(5) GAA).

Revocation

The appointor can revoke the authority of the existing enduring guardian by appointing another enduring guardian (s.35C(1) GAA), or by executing a Revocation of Appointment in the form provided in Schedule 4 of the GAA, which has the same requirements as to witnesses as the instrument of appointment (s.35C(3)).

VCAT also has the power to revoke the appointment of an enduring guardian if it is satisfied that the enduring guardian is not able or willing to act in that capacity, or has not acted in the appointor's best interests, or has acted in an incompetent or negligent manner (s.35D).

Advice

An enduring guardian may apply to VCAT for advice or direction about the scope of their appointment, or the exercise of their powers under the instrument of appointment (s.35E(1) GAA).