Reading time: 5 minutes

There are a number of documents that a person may wish to complete in order to appoint one or more persons to manage their legal and financial affairs (i.e. a power of attorney) and make medical, health care and lifestyle decisions for them (i.e. an appointment of enduring guardian, advance health directive or medical treatment consent).

Appointment of Enduring Guardian

An Appointment of Enduring Guardian (also known as an Enduring Power of Guardianship) allows a person (the “principal”) to appoint another person or persons (the “guardian”) to make medical, health care and lifestyle decisions on the principal’s behalf.  It does not include financial decisions, for which a power of attorney must be prepared.

An Appointment of Enduring Guardian allows a guardian to consent or withhold consent to medical or dental treatment on the principal’s behalf.  However, if an enduring guardian withholds consent to proposed medical or dental treatment, generally a practitioner may only provide the treatment if the practitioner believes on reasonable grounds that it is in the principal’s best interests to do so and if the practitioner gives the enduring guardian the opportunity to refer the matter to the relevant guardianship tribunal for determination.

The principal must trust the guardian to make appropriate medical and lifestyle decisions, should get legal or medical advice (or both) before he or she signs it and should inform the guardian of the principal’s wishes in respect of medical and lifestyle issues. If these wishes change, then it is important that the principal lets their enduring guardian know.

If the principal appoints more than one guardian then the appointment must indicate whether the guardians are to act jointly, severally or jointly and severally.  Guardians who are appointed jointly are only able to make decisions if they all agree about the decision.  Guardians who are appointed severally or jointly and severally are able to make decisions independently of each other and do not need to all agree about the decision, which means that it is particularly important that the principal communicates his or her wishes to the guardians in order to minimise the risk of any future disagreement.  Careful consideration should be given to whether an appointment should be joint or joint and several.

The principal may appoint an alternative guardian to act if their guardian is unable to act.  If the principal appoints an alternative guardian then they will only have authority to act as guardian if the first appointed guardian dies, resigns or becomes incapacitated.

If the principal marries after making an Appointment of Enduring Guardian then the appointment will automatically be revoked, unless the principal married their guardian.

A guardian can resign at any time, by written notice to the principal.  However, if the principal has lost capacity when the guardian resigns then the resignation must generally be approved by the Guardianship Tribunal in the Australian state or territory in which the Appointment of Enduring Guardian was made in order for it to be effective.

There is no public register on which an Appointment of Enduring Guardian is kept. It is therefore important that the principal notifies friends and family of the appointment and where the original document (and any copies of it) is/are kept.

The principal should provide a copy of the enduring guardianship appointment to your enduring guardian and keep a copy in a safe place. You should also let close friends or family know about it and give a copy to your solicitor, doctor and health service provider.

Advance Health Directive

An advance health directive is a document that deals with the future health care of the principal and enables the principal to give directions about their medical treatment for times when they cannot speak on their own behalf.  For example, when the principal is unconscious or unable to communicate their wishes due to severe illness. Before completing or signing an advance health directive the principal may wish to speak to their general practitioner or a specialist medical practitioner in order to explain their wishes and to confirm that they have capacity to complete the document.

Medical Treatment Consent

In some Australian states and territories a person can also complete a medical treatment consent in addition to an appointment of enduring guardian, which has priority over any appointment of enduring guardian in relation to any medical treatment covered by the consent document.  For example, in Victoria if a principal appoints a person as his/her agent under the Medical Treatment Act 1988 (Vic) and another person as his/her enduring guardian then the decision of the agent under the Medical Treatment Act 1988 will have priority over the decision of the enduring guardian in relation to any proposed medical treatment and the agent under the Medical Treatment Act 1988 will be able to refuse to consent to medical treatment on the principal’s behalf in all circumstances regardless of any consent to the treatment that the enduring guardian may give or wish to give.

Please note that LegalVision is a commercial law firm and cannot assist with these matters. We recommend you contact your local law society.


Redundancies and Restructuring: Understanding Your Employer Obligations

Thursday 7 July | 11:00 - 11:45am

If you plan on making a role redundant, it is crucial that you understand your employer obligations. Our free webinar will explain.
Register Now

How to Sponsor Foreign Workers For Your Tech Business

Wednesday 13 July | 11:00 - 11:45am

Need web3 talent for your tech business? Consider sponsoring workers from overseas. Join our free webinar to learn more.
Register Now

Advertising 101: Social Media, Influencers and the Law

Thursday 21 July | 11:00 - 11:45am

Learn how to promote your business on social media without breaking the law. Register for our free webinar today.
Register Now

Structuring for Certainty in Uncertain Times

Tuesday 26 July | 12:00 - 12:45pm

Learn how to structure to weather storm and ensure you can take advantage of the “green shoots” opportunities arising on the other side of a recession.
Register Now

Playing for the Prize: How to Run Trade Promotions

Thursday 28 July | 11:00 - 11:45am

Running a promotion with a prize? Your business has specific trade promotion obligations. Join our free webinar to learn more.
Register Now

Web3 Essentials: Understanding SAFT Agreements

Tuesday 2 August | 11:00 - 11:45am

Learn how SAFT Agreements can help your Web3 business when raising capital. Register today for our free webinar.
Register Now

Understanding Your Annual Franchise Update Obligations

Wednesday 3 August | 11:00 - 11:45am

Franchisors must meet annual reporting obligations each October. Understand your legal requirements by registering for our free webinar today.
Register Now

Legal Essentials for Product Manufacturers

Thursday 11 August | 11:00 - 11:45am

As a product manufacturer, do you know your legal obligations if there is a product recall? Join our free webinar to learn more.
Register Now

About LegalVision: LegalVision is a commercial law firm that provides businesses with affordable and ongoing legal assistance through our industry-first membership.

By becoming a member, you'll have an experienced legal team ready to answer your questions, draft and review your contracts, and resolve your disputes. All the legal assistance your business needs, for a low monthly fee.

Learn more about our membership

Our Awards

  • 2020 Innovation Award 2020 Excellence in Technology & Innovation Finalist – Australasian Law Awards
  • 2020 Employer of Choice Award 2020 Employer of Choice Winner – Australasian Lawyer
  • 2020 Financial Times Award 2021 Fastest Growing Law Firm - Financial Times APAC 500
  • 2020 AFR Fast 100 List - Australian Financial Review
  • 2021 Law Firm of the Year Award 2021 Law Firm of the Year - Australasian Law Awards
  • 2022 Law Firm of the Year Winner 2022 Law Firm of the Year - Australasian Law Awards