In Brief

Gen­er­al­ly we pre­fer to make our own deci­sions con­cern­ing our per­son­al lives and finances. But what hap­pens if we lose our men­tal capac­i­ty, due to injury or acci­dent, and are ren­dered unable to make such deci­sions ourselves?

You can plan for your future by appoint­ing an endur­ing guardian and endur­ing pow­er of attor­ney. If prop­er­ly draft­ed, both appoint­ments ​‘endure’ beyond you los­ing men­tal capac­i­ty. This means the pow­ers grant­ed under the appoint­ments remain effec­tive even after you lose men­tal capacity.


So what is an endur­ing guardian and endur­ing pow­er of attorney?

Endur­ing Guardian

An appoint­ment of endur­ing guardian is used to appoint a per­son to make lifestyle deci­sions on your behalf. It is impor­tant that you choose the right per­son for this role, since the pow­ers giv­en to your guardian under this appoint­ment are wide and con­cern issues of a high­ly sen­si­tive nature. For instance, your guardian may:

  • decide where you will live, for exam­ple — in a hos­tel or nurs­ing home;
  • decide what health care and per­son­al ser­vices you will receive, for exam­ple — treat­ing doc­tor, home sup­port services;
  • pro­vide con­sent for you to receive minor and major med­ical treat­ments; and/​or
  • refuse med­ical treat­ment on your behalf, in cir­cum­stances as direct­ed by you in your appoint­ment of endur­ing guardian, even if that treat­ment is nec­es­sary to pro­long your life and the refusal of the treat­ment will lead to your death.
Endur­ing Pow­er of Attorney

An appoint­ment of endur­ing pow­er of attor­ney is used to appoint a per­son, usu­al­ly some­body trust­wor­thy and with invest­ment man­age­ment skills, to make finan­cial deci­sions on your behalf. For instance, a pow­er of attor­ney gives your attor­ney the author­i­ty to:

  • buy and sell real estate (once your pow­er of attor­ney is lodged with Land and Prop­er­ty Infor­ma­tion), shares and oth­er assets on your behalf; and
  • oper­ate your bank accounts, spend mon­ey and give rea­son­able gifts on your behalf.
Act today, not tomorrow

Whilst it is not pos­si­ble to stop ill­ness or acci­dents from hap­pen­ing, you can decide now who should make such sen­si­tive deci­sions for you if you ever lost the capac­i­ty to make these deci­sions yourself.

If you would like to repub­lish this arti­cle, it is gen­er­al­ly approved, but pri­or to doing so please con­tact the Mar­ket­ing team at marketing@​swaab.​com.​au. This arti­cle is not legal advice and the views and com­ments are of a gen­er­al nature only. This arti­cle is not to be relied upon in sub­sti­tu­tion for detailed legal advice.

Publications

Land­lords Beware: New Tobac­co Laws Could Mean Heavy Fines and Even Gaol Time

How Do New Tobac­co Laws Affect Land­lords in NSW?This year the NSW State Gov­ern­ment is crack­ing down on the sale of…

When is entry into a lot with­out the lot own­er’s con­sent per­mit­ted to car­ry out repair work to com­mon prop­er­ty? When there is an emergency

When is entry into a lot with­out the lot own­er’s con­sent per­mit­ted to car­ry out repair work to com­mon prop­er­ty? When…

A Short Sto­ry about Bullying

In the recent Fair Work Com­mis­sion deci­sion of Appli­ca­tion by Gary Whitham [2026] FWC 3322, Deputy Pres­i­dent Col­man gave short…

In the News

Michael Byrnes appeared on McK­night Tonight with Robert McK­night on 6 Octo­ber 2026 to dis­cuss the lat­est devel­op­ments in the Jack­ie ​‘O’ Hen­der­son v ARN case (from 5:40 to 20:00)

What hap­pened to the Jack­ie O and ARN court case, and why did the Fed­er­al Court hear­ing col­lapse in OctoberMichael Byrnes appeared…

Michael Byrnes is quot­ed in the arti­cle, “ ​‘You can’t force new con­tracts on employ­ees’ ”, pub­lished in TV Black­box on 4 Octo­ber 2026

Can an employ­er force employ­ees to sign a new employ­ment con­tract if they don’t agree to the changes?Michael Byrnes is quot­ed in…

Michael Byrnes is quot­ed in the arti­cle, ​“Jack­ie Hen­der­son and ARN’s court show­down post­poned”, pub­lished in Mum­brel­la on 2 Octo­ber 2026

Why was Jack­ie Henderson’s Fed­er­al Court tri­al against ARN Media post­poned, and what issues delayed the Octo­ber 2026 hearing?Michael Byrnes is…

Sign up for our Newsletter

*Mandatory information