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Enduring Power of Guardianship

on Monday, 20 January 2014.

Enduring Power of Guardianship

POWERS OF AN ENDURING GUARDIAN

The Guardianship and Administration Act 1993 s 25 provides the ability to make an enduring power of guardianship.

Enduring powers of attorney and enduring powers of guardianship are different in that they deal with different aspects of peoples lives. They are both arrangements which allow a person to plan ahead, thereby providing a possible alternative to the involvement of the Guardianship Board at a later stage in someone’s life should they become legally incapacitated.

 

POWERS OF AN ENDURING GUARDIAN

Appointing an enduring guardian is different from appointing an enduring power of attorney. An enduring power of guardianship refers to making personal decisions; for example, where the person should live, recreation decisions or consenting to or refusing medical treatment. An enduring power of attorney on the other hand is concerned with a person’s financial affairs, not their personal welfare. An enduring power of attorney on the other hand is concerned with the financial well-being of the donor.

An enduring guardian has the legal right to make most substitute decisions for a person with mental incapacity as if the guardian were that person. Where possible an enduring guardian should consider what decision the person would make in the situation if capable.

The types of decisions an enduring guardian might have to make include:

  • to approve care and management plan, including for instance which doctor a person should be treated by;
  • what treatment, surgery or medication a person should have (with some exceptions);
  • whether a person should go to the dentist and what treatment should be carried out;
  • to consent to entry of the person in a group home, hostel or nursing home;
  • to authorize leisure activities, for example, a holiday (where and with whom), a particular day program and with whom a person can associate, or have visits from.

Where a person has appointed an enduring guardian, and also appoints a medical agent (under the Consent to Medical Treatment and Palliative Care Act 1995), both have the power to make decisions concerning medical treatment. It is not necessary to have both. The enduring guardian cannot act in relation to medical treatment if the medical agent is available and willing to act- Guardianship and Administration Act 1993 s 25(5)(b). In addition, the person may also have completed an anticipatory direction and the enduring guardian cannot act inconsistently with this direction.

Additional authority may be necessary if an enduring guardian needs to override the refusal of the person for whom they have been appointed. This situation could occur if the person for whom they have been appointed is refusing to move residence or to have necessary treatment, and by doing so, is putting their own health or safety, or the health or safety of others at risk. If an enduring guardian requires special powers to authorize physical compulsion, he or she must apply to the Guardianship Board for an order granting powers under the Guardianship and Administration Act 1993 s 32.

Restrictions on enduring guardians

Although an enduring guardian has a responsibility to protect a person’s interests, he or she does not have the obligation to care for the daily needs of that person. The decisions of a guardian extend to all personal decisions; however, the enduring guardian has no authority to interfere with civil liberties for example, intercepting mail or preventing a person from marrying.

The enduring guardian has no authority to deal with money. However, she or she has to maintain an effective working relationship with the person responsible for financial management and consult her or him about important decisions involving money.

An enduring guardian is not able to consent to certain treatments which the law states must have additional legal authority. These are: sterilization, termination of pregnancy, psychosurgery and, in certain cases, electro-convulsive therapy (ECT).

REVOKING A POWER OF GUARDIANSHIP

As long as a person has legal capacity, then he or she may revoke the appointment at any time. If the person no longer has legal capacity to make such a decision, then an application would need to be made to the Guardianship Board to revoke the appointment. This can only happen in certain cases, for example, where the enduring guardian is no longer able to act in that role, or there is a problem with what the enduring guardian is doing, or people become concerned that the enduring guardian is not acting in the interests of the person, or the guardian is unavailable to make decisions.

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