NSW Enduring Guardianship

Discussion in 'Wills and Estate Planning Law Forum' started by Jan9, 4 November 2018.

  1. Jan9

    Jan9 Member

    4 November 2018
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    My question is two-fold regarding enduring guardianship in NSW.

    As background information, an elderly relative in my family has been suffering incapacitation from dementia for about 6 years, has been in an aged care facility for about 4 years and is currently in the advanced stages of dementia - recognises no one, cannot walk, feed or self care (very sad to witness). She appointed her 2 daughters as her enduring guardians and power of attorney prior to her becoming incapacitated (about 10 years ago). She also has 2 sons. One daughter sadly passed away about 6 years ago and the remaining daughter continued in her role. It became apparent to other family members that the remaining daughter was mis-managing her mother’s finances (she was spending the money in large amounts on unnecessary items and used about $400 000 to finance the purchase of a house in her name only - her mother’s name was not placed on the title dead despite using her money for purchase). Subsequently her power of attorney was revoked by NCAT in 2014 and now resides with the Public Trustee. The daughter retained enduring guardianship. There is now considerable animosity between the daughter and her 2 remaining siblings as a consequence.

    My questions are:

    1. Can the daughter appoint a substitute enduring guardian (to assume responsibilities in the event of the daughter’s incapacitation or passing) on behalf of her mother, in her role as enduring guardian in NSW?

    2. The daughter (enduring guardian) suffers from numerous medical conditions and her health continues to decline. She is morbidly obese, requires a walking frame for mobility and cannot walk further than 5 m without struggling to breathe. She has been told by health professionals if she doesn’t lose weight, she will most likely be dead within the next 6-12 months. She also has mental health difficulties - anxiety, debilitating agoraphobia and displays characteristics of bi-polar disorder. She rarely visits her mother in the aged care facility due to her anxiety and agoraphobia (maybe once every 6 months) and communicates with her mother’s Carer’s by telephone and email only. Her mental health has deteriorated considerably in the last 4 weeks and she is exhibiting extreme paranoia, with many statements and accusations made by her becoming quite delusional. It is very sad, but equally frustrating for other family members to witness. Several family members have expressed concerned over her ability to make rational decisions about her mother’s health and welfare in her current state. At what point would NCAT deem her to be unfit as enduring guardian and revoke her guardianship? And what evidence would need to be submitted?

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