Enduring Power of Guardianship | Article

An Enduring Power of Guardianship (EPG) is a special paper that gives someone you choose the power to make big decisions for you if you ever can’t make them yourself. These decisions can be about your personal life, the way you live and the treatment you receive.

An Enduring Power of Guardianship (EPG) helps protect you if you can’t make good decisions for yourself anymore. To make an EPG, you must be 18 years old or older and able to make an important agreement. The rules for how an EPG works, are written in a law called the Guardianship and Administration Act 1990, in a part called Part 9A.

What is an enduring guardian?

The person you choose to make decisions for you is called an enduring guardian. They must be 18 years old or older and able to make important choices.

Your enduring guardian can make decisions about where you live, the help you get and the treatment you receive. But they can’t make decisions about your money or property.

Joint and substitute enduring guardians

You can choose more than one person to be your enduring guardian, but they must work together and agree on decisions for you. It’s important to choose people who can work well together.

The Public Advocate suggests that you don’t choose more than two enduring guardians.

You can also choose replacement enduring guardians who will take over if one or more of your chosen guardians can’t help you anymore

When making an EPG, you need to decide when your guardians will act. For example, you might decide that your guardian can only make decisions when they are in the same state as you.

How an Enduring Power of Guardianship works

You can choose what decisions your enduring guardian can make for you. They can make important choices about where you live, who you live with, your health care, education, legal proceedings and support services. You can also choose to limit their authority. For example, you might allow them to make decisions about your health care, but not about where you live. Your EPG determines how much authority your guardian has. This means you can keep control over some parts of your life and let your guardian handle more complex decisions. This can be helpful if your condition changes over time.

What you should know about making an Enduring Power of Guardianship

It is important to regularly review your EPG to ensure that it continues to reflect your wishes and circumstances. You can change or cancel your EPG at any time, as long as you have full legal capacity to do so.

To change or cancel your EPG, you must complete a new EPG form and provide copies to your enduring guardian, replacement enduring guardians (if any) and any other relevant parties, such as your GP and service providers. It is recommended that you seek legal advice before making any changes to your EPG.

In the event that you become unable to make decisions and do not have an EPG in place, a family member or friend may apply to the State Administrative Tribunal to be set (appointed) as your guardian. This process can be time-consuming and expensive, and the appointed guardian may not be someone you would have chosen.

By making an EPG, you can ensure that your wishes are respected and that decisions about your care and wellbeing are made by someone you trust.

How to make an Enduring Power of Guardianship

If you need help with the EPG form or have any questions, you can contact the Office of the Public Advocate through their telephone advisory service or email.

FREQUENTLY ASKED QUESTIONS – GENERAL

If my child has an intellectual disability or a brain injury and cannot make decisions, can I choose myself or someone else to be their enduring guardian?

Some people want to protect their adult children with a decision-making disability from abuse or neglect. But you can’t make an Enduring Power of Guardianship for someone else. If your child does not have the capacity to make an EPG, there are other processes that need to be followed to make decisions about their personal, lifestyle and treatment matters.

What if someone doesn’t have a guardian?

When someone can no longer make decisions for themselves but they don’t have a formal guardian appointed, the law has a list of people who can make decisions about their medical treatment. This list goes in order of priority and the person who is first on the list and meets certain criteria can make the decision.

For other types of decisions, there is no official list. If everyone agrees on the decision, no formal guardian is needed. This is called the ‘least restrictive alternative’ and is a way to make decisions for someone without needing a guardian.

What if the informal ways of making decisions stop working?

Sometimes communication and agreements break down when people can’t agree, are not available or are hesitant to make decisions for someone with a decision-making disability. In such cases, a guardian needs to be appointed through an application to the State Administrative Tribunal.

I have already made an Enduring Power of Attorney. Can I change this so that my attorney can also make personal, lifestyle and treatment decisions?

No. If you make an Enduring Power of Attorney, the person you choose can only make property and financial decisions on your behalf. It is not possible to expand their role to include making lifestyle decisions. To appoint someone to make personal, lifestyle, and treatment decisions on your behalf, you will need to make an Enduring Power of Guardianship.

What if I don’t want to use the kit for EPG that is given to me?

If you want to type the information yourself, you can find the format for the Enduring Power of Guardianship form on the Guardianship and Administration Regulations 2005 website. You can download it as a word document and type in the information.

What happens if I break up with the person I chose to be my enduring guardian?

If you divorce or separate from the person you chose as your enduring guardian, it won’t cancel your Enduring Power of Guardianship. You don’t need to do anything if you still want them to be your guardian. However, if you don’t want them to be your guardian anymore, you need to cancel the EPG. If you don’t have the capacity to do this, someone else can apply to the Tribunal to make a decision on whether the EPG should still be valid.

Does getting married or starting a de facto relationship make my enduring power of guardianship invalid?

If you get married or start a de facto relationship, your existing Enduring Power of Guardianship is still in place. If you want your spouse or partner to be your enduring guardian instead of the person you previously appointed, you will need to cancel your existing EPG and make a new one appointing your spouse or de facto partner.

FREQUENTLY ASKED QUESTIONS – FOR ENDURING GUARDIANS

I have been asked to be an enduring guardian. Do I have to accept the role?

You don’t have to be an enduring guardian if you don’t want to. It is a voluntary job and it is your choice to accept the role. However, before accepting the role, it’s important to understand the responsibilities that come with it and the decisions you’ll need to make so that you feel confident in fulfilling the duties required.

I am an enduring guardian with the authority to make treatment decisions. I need to make a treatment decision but do not fully understand the information being given to me by the health professional. What should I do?

If you don’t understand a recommended treatment, ask the doctor to explain it in simple words or provide written information. Take your time and don’t feel forced to decide until you have all the information. Record the decision, how and when it was made and who was involved to avoid future arguments.

I am a joint enduring guardian and there is conflict between myself and the other joint enduring guardian. What should we do to resolve the situation?

If there is a argument between the appointed enduring guardians, you can ask their social worker to arrange a meeting to try to solve the problem. If that doesn’t work, you can ask the State Administrative Tribunal to help by giving directions, cancelling or changing the terms of the EPG. If you’re not sure what to do, you can call the Office of the Public Advocate’s Telephone Advisory Service at 1300 858 455 to get help.

Can I handle financial matters for the person who appointed me as their enduring guardian?

An enduring guardian can’t make financial decisions for someone they’re supporting. Their role is to make personal, lifestyle, and treatment decisions (as allowed by the EPG form) if the appointor can’t make those decisions due to incapacity.
If someone wants to appoint someone else to make financial decisions on their behalf, they need to use an Enduring Power of Attorney (EPA). An EPA lets an adult with full legal capacity choose another person or agency (attorney) to make property and financial decisions for them.

Can I give my enduring guardianship authority to someone else, such as when I go on vacation and need someone to take my place temporarily?

As an enduring guardian, you cannot choose someone else to act on your behalf. If you are unable to carry out your responsibilities, you may resign from the position. If the person you are caring for still has the ability to make decisions, you should inform them and return any relevant documents. They may then choose to appoint another person as their enduring guardian. If the person you are caring for has lost their decision-making ability, you will need to apply to the State Administrative Tribunal to be removed from the role and have an alternative decision-maker appointed if needed.

Do I continue in my role as enduring guardian when the person who appointed me dies?

When the person who appointed you as enduring guardian passes away, your role as an enduring guardian also ends. After their death, the provisions in the person’s will come into effect. If you are also the executor of the person’s will, any actions you take will be in your role as executor and not as an enduring guardian.

What should I do if I don’t want to be an enduring guardian anymore, or I’m not able to do it anymore?

An enduring guardian can stop being the guardian only if the person they’re taking care of still has the ability to make decisions. If the person has lost the ability to make decisions and decisions cannot be made informally, then the enduring guardian will need to go to the State Administrative Tribunal to make sure someone else is chosen as a decision maker.

FREQUENTLY ASKED QUESTIONS – FOR SERVICE PROVIDERS

Is it reasonable for staff at hospitals and aged-care facilities to witness EPGs?

Hospitals and aged-care facilities have to make their own rules about whether their staff can or should sign Enduring Power of Guardianship (EPG) documents. These rules help protect the staff and make sure they are not pressured to sign anything, especially when there are concerns about the person’s ability to make the decision.

Can service providers request a copy of an EPG?

Yes, when seeking decisions for someone who has lost the ability to make decisions, service providers must confirm the person’s Enduring Power of Guardianship (EPG) first. It is important for them to ask for a copy of the EPG when the person becomes a client. Service providers should also keep a record of the EPG’s details and the authority of the enduring guardian. They should also ensure all staff members are aware of this information.

What can I do to support a client’s enduring guardian if they are having difficulty with their role?

If you notice that an enduring guardian is struggling with their role, you can talk to them to see if you can help. The Office of the Public Advocate has a guide that can help them understand the decision-making process and they can also call the Telephone Advisory Service at 1300 858 455 for advice. The advisory service cannot make the decision for the enduring guardian.

If I think that the enduring guardian is doing something wrong or inappropriate, what should I do?

If you think an enduring guardian is not doing the right thing or not taking good care of the person they are caring for and you have already talked to them but the problem persists, you can go to the State Administrative Tribunal to seek a solution about the way the Enduring Power of Guardianship is handled.

What should I do if a client wants to make an Enduring Power of Guardianship (EPG)?

As a service provider or health professional, you can help clients who want to complete an Enduring Power of Guardianship by providing them with information about it. This can include showing them resources such as the Office of the Public Advocate’s website, publications and Telephone Advisory Service. While it’s expected that people will complete the forms themselves, you can still help them in finding the information they need.

If a client who made an Enduring Power of Guardianship has lost the ability to make their own decisions, who can I ask for help in making decisions about their personal life, treatment and lifestyle?

When someone has made an Enduring Power of Guardianship, they have decided who will make decisions for them when they cannot. You should ask to see the EPG to find out who has been chosen as the enduring guardian and what decisions they are authorised to make. If the enduring guardian can make the decision you need, you should ask them. But if they cannot, they may need to apply to the State Administrative Tribunal for permission to make the decision.

Original source: https://www.wa.gov.au/organisation/department-of-justice/office-of-the-public-advocate/enduring-power-of-guardianship