Many people assume incapacity is global, total and permanent. The Guardianship Act 1987 (NSW) treats it differently. Capacity is decision-specific: you might still have it for deciding what you eat, but not for consenting to a particular surgery. Your enduring guardian takes over only the specific decision you can’t make. A doctor usually assesses whether you have the capacity for that decision; NCAT becomes involved only if the assessment is disputed. The appointment otherwise sits dormant, sometimes for decades after it’s signed.
Most clients want to know first whether their guardian can access their money. They can’t. An enduring guardian has no authority over finances or property, which requires a separate enduring power of attorney.
The guardian’s actual work is closer to what a doctor would discuss with you: consenting to surgery, deciding whether you can stay in your home as your needs change, and arranging the support you’ll receive. The scope is written into the appointment document. Under the Guardianship Act 1987 (NSW), you decide how broad it runs when you sign. Day-to-day matters like meals and visitors fall to the guardian only if the document expressly says so.
A guardian can’t override your objection to medical treatment. They can’t act in ways that contradict a valid advance care directive you’ve already signed. And nothing they decide takes effect until a doctor, or NCAT in a contested case, has assessed that you’ve lost capacity for the specific decision at hand.
Drafting is where this matters most. The document defines what your guardian can and can’t do, and once capacity is lost, it can’t be changed.
The scope of your enduring guardian's authority is only as clear as the document that defines it. We draft appointments that are specific, legally compliant under the Guardianship Act 1987 (NSW), and unambiguous.
When guardianship arrangements are disputed, or a formal application is required, we represent clients before NCAT's Guardianship Division, from initial filing through to hearing.
Enduring guardianship rarely sits in isolation. We advise on the full picture, enduring power of attorney, advance care directives, and your will, so each document works with the others.
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