News & Insights

Family relationships grow, heal, and evolve over time but when an elderly family member loses capacity and relies on the care of others, things can get complex. Enduring guardians (EG) and enduring power of attorneys (EPA) are a useful tool for safeguarding the care and desires of the elderly when they lose capacity, but this responsibility has its limitations. In a recent outcome, the Court has decided visitation cannot be regulated by an EG or EPA unless the elderly individual has given instruction to do so upon appointing the EG or EPA as their guardian. Without specific instructions, EG’s and EPA’s do not possess the power to restrict the visitation of particular friends or family members, and this comes as great news for those unlawfully restricted from visiting their loved ones.

Enduring guardian and enduring powers of attorney

While an enduring guardian and enduring power of attorney are often regarded as the same, each appointment carries differing powers and responsibilities. Appointing an enduring guardian gives a person the authority to make lifestyle and medical decisions on your behalf. This may include decisions regarding where you reside, access to medical and dental care, and whether to accept or refuse medical treatment on your behalf.

An enduring power of attorney is the formal appointment to grant another person the authority to manage your legal and financial affairs. Unlike an ordinary power of attorney, an EPA will continue even when you have lost legal capacity. Both an EG and EPA must be made by an adult with full legal capacity, however, the appointment can be made at any time or stage of life.

Contesting an Enduring Guardian decision in practice

A recent application brought by Macpherson Kelley provided the opportunity for the court to clarify the limits imposed on an EG or EPA. In the circumstances, an EG, who was also an EPA, was preventing access to an elderly individual living in an aged care facility.

The application was brought to the Supreme Court of New South Wales questioning whether the powers and responsibilities of an EG extended to permitting and refusing access to an individual. Ultimately the court found the appointment of an EG did not vest the authority to regulate access to the individual under the care of the EG. Therefore, the decision to allow visitation access was held instead, by the residential aged care facility itself.

In coming to this conclusion, the court examined the Guardianship Act 1987 (NSW) and noted the apparent silence regarding association and visitation on the appointer in granting the functions of an EG. The Court found the legislative silence determined that it is the decision of the appointing individual whether to authorise an EG to regulate as part of their EG functions, who may, or may not, be granted access to them.

The Court refused the respondent’s submission that upon the appointment of an EG, and as a result of the functions granted as an EG, an implied authority was created allowing the EG the power to allow or deny visitation to an individual.

Contesting an EPA decision in practice

The alternative submission proposed by the Respondent, that the power to determine who can be granted access to an individual was vested in a chosen EPA, was also dismissed by the Court. In reaching this determination, the Court gave regard to the Powers of Attorney Act 2003 (NSW). It found that an EPA could not make decisions about lifestyle or health, and as an extension, it could not construe a power on an EPA to determine issues of visitation and access on an individual.

As a result, the Court emphasised for a EG or EPA to be granted the authority to permit access or visitation, the individual appointing them as EG or EPA must explicitly state that the power is authorised. If this explicit statement is not evident and the individual is residing at an aged care facility, the decision of access or visitation will lie with the facility itself.

Seek advice in first instance

If you require further guidance on the responsibilities of an EG or EPA, or you are seeking to contest a decision of an EG or EPA, seek advice from a lawyer to review your options.

If this article raised anything for you, contact our experienced Family Law team for support and advice.

The information contained in this article is general in nature and cannot be relied on as legal advice nor does it create an engagement. Please contact one of our lawyers listed above for advice about your specific situation.