Guardianship and Administration Act 1995

A person who is of or over the age of 18 years may, by instrument in writing, appoint a person as his or her enduring guardian and any such instrument may appoint 2 or more persons to act jointly as enduring guardians.

An instrument is not effective to appoint an enduring guardian unless – the appointor understands the nature and effect of the instrument; and it is in accordance with Form 1 in Schedule 3 or in a form to similar effect; and there is endorsed on it – an acceptance in the form, or to the effect, of the acceptance specified in Form 1 signed by each person appointed as an enduring guardian; and a declaration in the form, or to the effect, of the declaration specified in Form 1 signed by each person appointed as an enduring guardian, that the person has obtained and understood any advance care directive given by the appointor; and it is signed by the appointor with that signature attested by the signature of two witnesses neither of whom is a party to it nor a close family member of a party to it and each of whom has witnessed it in the presence of the appointor and each other; and it is registered with the Tribunal.

For the purposes of subsection (2)(aa), an appointor is taken to understand the nature and effect of the instrument only if the appointor understands the following matters:that the appointor may, in the instrument of appointment of an enduring guardian, specify or limit the power to be given to an enduring guardian and provide instructions to the enduring guardian about the exercise of the power; when the powers contained in the instrument of appointment of an enduring guardian may be exercised; that, once the powers contained in the instrument may be exercised, the enduring guardian has power to make decisions on behalf of the appointor, subject to the terms or information about exercising the power in the instrument and in accordance with the duties and responsibilities under this Act; that the appointor may revoke the instrument of appointment of an enduring guardian at any time if the appointor has the decision-making ability to do so; that the power that the appointor has given continues even if the appointor subsequently loses decision-making ability; that the appointor is unable to oversee the use of the power if the appointor subsequently loses decision-making ability.

A person is not eligible to be appointed as an enduring guardian unless the person is of or over the age of 18 years.

A person is not eligible to be appointed as an enduring guardian if the person is, in a professional or administrative capacity, directly or indirectly responsible for, or involved in, the medical care or treatment of the appointor and, if a person who is validly appointed as an enduring guardian becomes so responsible or involved, the appointment lapses.

Subject to any conditions specified in the instrument, an instrument appointing an enduring guardian confers, on each appointee, power to make decisions in relation to the appointor's personal matters if the appointor subsequently is unable, by reason of impaired decision-making ability, to make decisions in relation to those personal matters.

The powers conferred by an instrument appointing an enduring guardian are, unless the Tribunal otherwise directs, to be exercised in accordance with any lawful directions specified in the instrument.

Subject to any conditions specified in the instrument, section 25(2) and (3) apply to an enduring guardian as if the enduring guardian were a guardian appointed under section 20.

The amendments to this section and Schedule 3 made by the Guardianship and Administration Amendment (Advance Care Directives) Act 2021 do not apply in relation to an instrument of appointment of an enduring guardian made before the commencement of that Act.