The Guardianship Act NSW 1987 (‘the Act”) allows a person over the age of 18 years (“the appointor”) to appoint another person to be his or her guardian. The appointment must be in writing. The appointment allows the guardian to decide on behalf of the appointor the following:
- Decide the place in which the appointor is to live (eg a specific nursing home or even the appointor’s own home);
- Decide the healthcare the appointor is to receive;
- Decide the other kinds of personal services that the appointor is to receive;
- Giving consent to the carrying out of medical or dental treatment on the appointor or;
- Any other function relating to the appointor’s person that is specified in the instrument.
However, the guardian can only make these decisions in the event that the appointor is not able to make those decisions himself or herself. Occasionally, a dispute arises as to whether the appointor is able to make his or her own decisions. Section 6N of the Act provides that in any proceedings in which there is a question as to whether, at a particular time, the appointor is a person in need of a guardian, then the certificate of a medical practitioner to the effect that the appointor was, at that time, totally or partially incapable of managing his or her person because of a disability is evidence of the fact that the appointor was a person in need of a guardian. Naturally, if the medical practitioner is of the view that the appointor remains in a position to make his or her own decisions then the guardian is not entitled to do so. The appointment of a guardian is an important (and often necessary) step to take. It is fundamental that the person (or persons) appointed should be reliable, can be trusted and a person who will take the appointor’s best interests into consideration before making a decision. It happens on occasions that parents appoint one or more of their children to be their guardians with the consideration being that the child would be offended if he or she were “left out”. If it becomes necessary for the guardian to make decisions (i.e. the appointor can no longer make his or her own decisions) then it is in the appointor’s interests to have the most suitable person acting as his or her guardian at that time. The appointment of a guardian must be taken seriously and the most suitable person should be chosen to fulfil the role.