In New South Wales, any person 18 years of age or older may appoint another person to be their Enduring Guardian under the Guardianship Act 1987 (NSW).
An Enduring Guardian is someone who can make healthcare, lifestyle and medical decisions* on behalf of a person who lacks decision-making ability.
1️⃣ Has effect only during such time as the appointor is a person in need of a guardian; and
2️⃣ Unless revoked or suspended under the Act, has effect during all such periods.
The appointment of a person as an Enduring Guardian is automatically revoked if the appointor marries or remarries a person (other than the appointee) after the date on which the person was appointed as an Enduring Guardian. (Section 6HA Guardianship Act 1987 (NSW)).
Note: New temporary regulations permit witnessing via video-conference during COVID-19 pandemic.
(1) Subject to subsection (2), an instrument appointing a person as an enduring guardian authorises the appointee, while the appointment has effect, to exercise the following functions:
(a) deciding the place (such as a specific nursing home, or the appointor's own home) in which the appointor is to live,
(b) deciding the health care that the appointor is to receive,
(c) deciding the other kinds of personal services that the appointor is to receive,
(d) giving consent under Part 5 to the carrying out of medical or dental treatment on the appointor,
(e) any other function relating to the appointor's person that is specified in the instrument.
(2) The instrument of appointment may limit or exclude the authority it confers in relation to any one or more of the functions specified in subsection (1).
(2A) For the purpose of exercising a function that an appointee is authorised to exercise by an instrument appointing the appointee as an enduring guardian, the appointee has the same right of access to information about the appointor as the appointor has.
(2B) Nothing in the Privacy and Personal Information Protection Act 1998 prevents a public sector agency (within the meaning of that Act) from disclosing information about an appointor to an appointee if the agency is satisfied that the disclosure of the information would assist the appointee to exercise his or her functions as an enduring guardian.
(2C) Nothing in subsection (2A) affects the operation of the Health Records and Information Privacy Act 2002 in relation to the disclosure of health information about an appointor to an appointee.
Note : Section 7 of the Health Records and Information Privacy Act 2002 (when read with section 8 of that Act) provides that a guardian of an individual may do any act authorised, permitted or required by that Act on behalf of an individual who is incapable of doing that act. An individual is incapable of doing an act for the purposes of section 7 if the individual is incapable, by reason of age, injury, illness or physical or mental impairment, of understanding the general nature and effect of the act or communicating the individual's intentions with respect to the act. If the individual is capable of doing the act, then the guardian may not do the act on behalf of the individual unless expressly authorised to do so.
(3) The functions authorised by an instrument appointing an enduring guardian are, unless the Tribunal otherwise directs, to be exercised in accordance with any lawful directions contained in the instrument.
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