Enduring Guardianship

Many people focus on planning ahead for their financial and legal affairs by making a Will and enduring power of attorney, but often do not consider what will happen if they find themselves unable to make personal and medical decisions due to illness or accident.

An enduring guardianship is a legal document that enables a person to appoint another person (the guardian) to make personal decisions on their behalf if they lose the mental capacity to make such decisions for themselves. 

If you register an enduring guardianship with the Tasmanian Civil and Administration Tribunal (the Tribunal), that document will give you certainty about who will make personal decisions for you if you should lose decision-making capacity.

Your guardian may make non-financial decisions such as where you live, what services are provided to you at home and what medical treatments you receive.

Enduring guardianship only comes into effect if or when you lose capacity and will only be effective during that period of incapacity. Therefore, it may never become operational.

If you would like to prepare an enduring guardianship document with the Public Trustee, please fill out our APPOINTMENT BOOKING FORM and a representative will contact you to confirm your appointment. 

  • What if a guardian has not been appointed?

    What if a guardian has not been appointed?

    If you lose capacity but have not appointed an enduring guardian, decisions about medical treatment may be made on your behalf by a ‘person responsible’ who your doctor believes has sufficient personal connection with you to consent or refuse treatment on your behalf.

    Alternatively, the Tasmanian Civil and Administrative Tribunal (the Tribunal) may appoint a guardian for you to make decisions such as where you live, what health care you have and who visits you. Generally, a guardian is only appointed by the Tribunal in circumstances of conflict or where some legal authority is required to promote your best interests.

    For more information about making an application to the Tribunal, please go to: https://www.tascat.tas.gov.au/guardianship/process or call on 1800 657 500.

  • Duties and Responsibilities of an Enduring Guardian

    Your enduring guardian can make decisions about your health care and accommodation requirements. This includes medical treatment, whether you live in your own home or a nursing facility, who can visit you or what personal services you receive, for example home support or meals on wheels.

    Your guardian is responsible for:

    • acting in accordance with any conditions or wishes expressed by you in the instrument of appointment;

    • acting in your best interests and promoting your dignity;

    • ensuring that you retain as much freedom of action and decision making as is possible; and

    • considering your wishes before making decisions for you.

  • Enduring Guardianship Fees and Charges

    (From 25 February 2021)

    Estate Planning Preparation fees (incl. GST)

    Single Person

    Couple

    Will preparation

    (Appointment Includes preparing an enduring power of attorney)

    $140

    $210

    Enduring power of attorney preparation

    (Financial matters)

    $140

    $210

    Enduring guardianship preparation

    (Personal and medical matters)

    $140

    $210

    If the estate planning documents are complex to prepare an hourly fee of $295 (pro rata) may apply.

    A standard Will and enduring power of attorney are prepared free for Seniors and Australian Government Pensioner concession card holders when the Public Trustee is appointed as executor/attorney (card must be presented and only applies to one appointment per year).

    • If you nominate Public Trustee as your executor fees will apply when we are required to administer your estate when you pass away.
    • If you nominate Public Trustee as your attorney fees will apply if we are required to manage your affairs if you lose capacity or you choose for us to manage your financial affairs.
    • Existing clients of the Public Trustee receive a 10% discount to prepare/revise new estate planning documents.
    • Fees for couples are based on the assumption instructions are similar.
    • Will (with an enduring power of attorney), Enduring power of attorney and guardianship preparation fees are based on the following standard appointment times
      • Single person – 1 hour to take instructions + 30 minutes to draft the documents + 30 minutes for the documents to be signed.
      • Couples – 1.5 hours to take instructions + 30 minutes to draft the documents + 30 minutes for the documents to be signed.
    • If you need more time than a standard appointment to provide your instructions and/or for us to provide advice to complete your documents, we will discuss your options with you before additional time is charged.  If required additional time has an hourly charge of $295 billable on a pro rata basis of $29.50 for each 6 minute unit actually undertaken to complete your documentation. 
    • There is an additional Government registration fee to register an enduring guardianship and or an enduring power of attorney. If the Public Trustee is asked to register an enduring power of attorney an administration fee is also charged. Enduring guardianship documents must be registered by the individual.
    • Telephone, online and office appointments are available.

    You can also view all Fees and Charges.

  • Enduring Guardianship FAQs

    We have compiled a list of the most commonly asked questions regarding enduring guardians. 

     

    • What are the differences between an Enduring Power of Attorney and Enduring Guardianship?

      An enduring power of attorney is a legal document that allows you to appoint someone to manage your financial affairs.

      An enduring guardianship is a person appointed to make your personal or medical decisions.

      Enduring power of attorney = financial affairs

      Enduring guardianship = Personal and medical affairs (non-financial) 

    • Why do I need an Enduring Guardian?

      If you have specific wishes in regards to your medical treatment, future personal decisions and / or the person you would like to make those decisions, you should consider preparing an enduring guardianship document while you have the capacity to do so. 

    • Who should I choose as my Guardian?

      Your guardian must be over 18 years of age. They cannot be a person who is involved in an administrative or professional capacity in your medical care or treatment (e.g. your GP). You also cannot appoint the Public Guardian or Public Trustee as your enduring guardian.

      You can appoint single or joint guardians. You can also appoint an alternative guardian to make decisions on your behalf in circumstances where the original guardian is absent or incapacitated.

      Your guardian should be someone you trust and who knows your wishes and preferences. They should preferably be a person who is decisive and able to advocate on your behalf to medical staff, care providers and members of your family.

       

    • What is the difference between an advance care directive and enduring guardianship?

      An enduring guardianship is an appointment recognised under Tasmanian law. Your enduring guardian will be able to make legally binding personal decisions on your behalf, after you have lost capacity to make those decisions.

      Advance care directives have not been legislated for under Tasmanian law, but are recognised at common law. 

      Many advance care directive forms are expressed to be a “guide” and refer to “preferences” and “wishes”; it assumes that there will be a ‘person responsible’ making medical decisions, rather than the form itself actually giving your consent/refusal. 

      For an advance care directive consent or refusal to be binding, it must be clear and precise. When consent is given a considerable time before medical treatment, the instructions may or may not be valid. If the instructions were not specific enough to apply to the treatment in question, it may not be valid.

      If the validity of an advance care directive is challenged, such a challenge would be heard and determined by the Supreme Court and there could be significant legal costs associated with that challenge.

      Given there is some uncertainty that an advance care directive will be legally binding after you have lost capacity to make and enforce your own decisions, you may wish to consider appointing an enduring guardian.

      For more information on advanced care planning for healthy dying, please refer to the Department of Health website. 

      https://www.health.tas.gov.au/health-topics/palliative-care/about-palliative-care/planning-and-decisions-about-end-life

      https://www.health.tas.gov.au/publications/advance-care-directive-form

    • Can I fill in an Enduring Guardianship document myself?

      You can prepare an enduring guardianship document with the Public Trustee.

      If you would like to prepare an Enduring Guardianship document on your own you can download a copy from the Tasmanian Civil and Administration Tribunal.

      For further information review the Enduring Guardian’s Handbook - Information for Enduring Guardian's in Tasmania

    • How do I register an Enduring Guardianship?

      If you prepare an enduring guardianship document with the Public Trustee, we can assist you with witnessing the documents, but you are required to register your own document, so it has legal effect. the document can be registered at Service Tasmania for a fee.

      There are strict requirements for the witnessing of an enduring guardianship. The must be 2 witnesses over 18 years of age and must not be related to you or to your guardians. Instruments of appointment that are not appropriately witnessed may be rejected for registration or invalidated after a review by the Tasmanian Civil and Administrative Tribunal (the Tribunal).

      Your guardian must have signed the instrument to indicate that he or she accepts appointment as your guardian.

      Upon registration, the Tribunal will return copies of the instrument to you. You should provide a copy to your guardian(s), your care providers and to your medical practitioner.

      Where can I get an Enduring Guardian form?

      You can prepare an Enduring Guardianship document with the Public Trustee.

      If you would like to prepare an Enduring Guardianship document on your own you can download a copy from the Tasmanian Civil and Administration Tribunal.

      For further information review the Enduring Guardian’s Handbook - Information for Enduring Guardians in Tasmania. 

      More information on the fees to register an Enduring Guardianship document can be found on the Tribunals website 

       

       

    • Interstate Recognition of Enduring Guardianship Instruments

      All Australian States and Territories have their own legislation governing Enduring Guardianship. Some, but not all, automatically recognise a Tasmanian Enduring Guardianship Instrument of Appointment as legally valid.


      If the Appointor is planning to move to another State or Territory or move around Australia, it is appropriate to find out whether that State or Territory will recognise a Tasmanian Enduring Guardianship Instrument. If it is not recognised, the Appointor may consider appointing an Enduring Guardian under the laws of that State or Territory.

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