Guardianship appointment – What happens if I don’t have a guardianship appoinment and I lose my capacity?

If you lose your capacity and you have not appointed someone as your guardian, subject to the operation of the Guardianship Act, there is at that point no one who has the legal capacity to make lifestyle and welfare decisions for you. Not even your spouse or partner or in the case of a child over 18, your parent.

Normally lifestyle and welfare decisions are made by your immediate family. However, a decision made by a family member who is not your spouse or defacto spouse or a parent in the case of a child under 18 may not have legal force if it is not something that is specifically permitted by part 5 of the Guardianship Act, which deals only with certain medical and dental procedures.

As lifestyle and welfare decisions include so much more than medical and dental procedures, unless you appoint someone to be your guardian, you have no guarantee if you lose your capacity either as to who will be appointed to be your guardian or of the decisions they will make.

What’s more, in certain circumstances, the Guardianship Act permits for someone other than your immediate family, who has had your care (other than for payment), to make application to be your guardian. That may not be what you want.

Don’t think that your enduring power of attorney is enough. An enduring power of attorney permits an attorney to make decisions about all of your money and property if you are not capable of doing this for yourself. It does not permit an attorney to make lifestyle and welfare decisions for you.

You can avoid these potential problems by appointing someone as your guardian.