3, Sussex Terrace, Hawthorn, South Australia 5062
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Appointments of enduring guardians are authorised by the Guardianship and Administration Act, 1993.
The Act places very heavy duties on you as an enduring guardian:
- you are authorised to exercise "the powers at law and in equity of a guardian" if the grantor becomes mentally incapacitated;
- you are authorised to consent to, or refuse to consent to, the medical treatment of the grantor except where he has a medical agent (appointed by a medical power of attorney) who is reasonably available and willing to make a decision about that treatment;
- you must exercise your powers in accordance with any lawful directions contained in the instrument appointing you enduring guardian;
- the paramount consideration in making any decision is what would, in your opinion, be the wishes of the grantor if he were not mentally incapacitated, but you can only base that opinion on "reasonably ascertainable evidence";
- you should seek to ascertain the present wishes of the grantor (unless it is not possible or reasonably practicable to do so) and you must give consideration to those wishes;
- your decision must be the one which is the least restrictive of the grantor's rights and personal autonomy consistent with his proper care and protection.
You are not eligible to be appointed an enduring guardian if you are, in a professional or administrative capacity, directly or indirectly responsible for or involved in the medical care or treatment of the grantor. If you have been validly appointed and subsequently become so responsible or involved, your appointment automatically lapses.
The Guardianship Board has power under the Act, in certain circumstances, to revoke your appointment. You may apply to the Board for advice or direction on the exercise of your powers.
It is an offence to induce a person, by dishonesty or undue influence, to execute an instrument appointing an enduring guardian. Conviction will result in the forfeiture of any interest that you may otherwise have had in the grantor's estate.
It is also an offence for an enduring guardian to ill treat or wilfully neglect the grantor if he is suffering mental incapacity.
"The powers at law and in equity of a guardian" have not been defined. They spring from the ancient prerogative right of the Crown to administer the estates of those suffering from mental incompetence. It must be assumed that the powers are very wide. However, it is not clear how those powers might be affected by, for example, an enduring power of attorney given by the grantor. Where there is real doubt about the extent of your powers as an enduring guardian, it may be advisable to apply to the Guardianship Board for advice and direction.