Can Family Override An Enduring Guardian?

Many families assume that if they disagree with an Enduring Guardian, they can simply step in and make decisions themselves.

In reality, things are not always that straightforward.

An Enduring Guardian is usually appointed because a person wanted a specific individual to make important health, lifestyle and personal decisions if they could no longer make those decisions themselves.

This often raises an important question:

Can family members override an Enduring Guardian if they disagree with the decisions being made?

The answer will depend on the circumstances, the laws in the relevant state or territory and whether the Enduring Guardian is acting within their authority.

In this guide, we explain the general principles Australians should understand about family disagreements and Enduring Guardianship.

What Is An Enduring Guardian?

An Enduring Guardian is someone chosen to make certain personal, lifestyle, health and medical decisions if another person loses decision-making capacity.

The role is different from an Enduring Power of Attorney, which generally deals with financial and legal matters.

Because the person personally chose their Enduring Guardian, that appointment often carries significant weight when decisions need to be made.

Can Family Members Simply Overrule An Enduring Guardian?

In general, family members cannot automatically overrule an Enduring Guardian simply because they disagree with a decision.

The purpose of appointing an Enduring Guardian is to identify who should make decisions if the person loses capacity.

If every family member could simply override that appointment, the document would provide little certainty.

However, that does not mean an Enduring Guardian can do whatever they want.

When Can Problems Arise?

Disagreements sometimes occur when family members believe:

The Enduring Guardian is not acting in the person’s best interests.
The person’s wishes are being ignored.
The guardian is exceeding their authority.
Important family members are being excluded from discussions.
The guardian is making decisions that create conflict within the family.

These situations can become stressful, particularly when emotions are already running high due to illness, hospitalisation or aged care decisions.

What Is An Enduring Guardian Expected To Do?

While laws vary across Australia, Enduring Guardians are generally expected to:

Act in the person’s best interests.
Consider the person’s values and wishes.
Make decisions within the authority granted to them.
Follow any legal requirements that apply in their state or territory.

The role is not about making decisions based solely on personal preferences.

The focus should be on the person who appointed the guardian and what matters to them.

What If Family Members Disagree?

Disagreement does not automatically mean the Enduring Guardian has done something wrong.

Many families have different opinions about care, accommodation, medical treatment or support services.

A disagreement may simply reflect different views about what should happen.

In many situations, open communication can help reduce misunderstandings and conflict.

Family discussions may not solve every issue, but they can sometimes prevent disagreements from escalating.

Can Authorities Become Involved?

In some situations, concerns about guardianship arrangements may be reviewed by the relevant tribunal, public advocate or other authority responsible for guardianship matters in that state or territory.

This generally occurs when there are concerns about how decisions are being made or whether the guardian is acting appropriately.

The exact process varies around Australia.

Professional legal advice may be appropriate if a serious dispute develops.

How Can Future Disputes Be Reduced?

No document can completely prevent family disagreements.

However, future disputes may be less likely when:

The right guardian is chosen.
Family members understand the appointment.
Future wishes have been discussed in advance.
Related planning documents are kept up to date.
The guardian understands the person’s values and preferences.

Planning conversations are often just as important as the documents themselves.

Why Choosing The Right Guardian Matters

The best way to reduce future conflict is often to carefully consider who should be appointed in the first place.

The role may involve difficult decisions during emotional and stressful situations.

The person chosen should ideally be someone who:

Understands your wishes.
Can communicate effectively.
Can remain calm during difficult situations.
Is willing to accept responsibility.
Will act in your best interests.

Choosing the right person can help create greater confidence for both you and your family.

Real-Life Example

Peter appointed his eldest daughter as his Enduring Guardian several years before he entered residential aged care.

After Peter’s health declined, family members disagreed about where he should live and what support services he should receive.

Some relatives believed different decisions should be made.

While the family had different opinions, Peter had already chosen who he wanted involved in those decisions.

Because his wishes had been documented in advance, there was greater clarity about who should take the lead role in decision-making.

Frequently Asked Questions

Can my children override my Enduring Guardian?

Not automatically. Family members cannot usually override an Enduring Guardian simply because they disagree with a decision.

Can multiple family members share decision-making authority?

This depends on the arrangements available under the laws in your state or territory and how the documents are prepared.

What if family members believe the guardian is acting improperly?

Concerns may need to be raised through the appropriate guardianship authority, tribunal or legal process in the relevant jurisdiction.

Can an Enduring Guardian ignore my wishes?

Generally, an Enduring Guardian is expected to consider the wishes, values and interests of the person who appointed them.

Does an Enduring Power of Attorney override an Enduring Guardian?

No. These roles generally cover different areas of decision-making. One usually focuses on personal and lifestyle decisions, while the other focuses on financial and legal matters.

Sources

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Disclaimer

This article provides general information only and is not legal advice. Guardianship laws vary between Australian states and territories. Professional legal advice should be obtained regarding your personal circumstances and any guardianship dispute.