How to Notarise an Enduring Guardianship Form in Australia

An enduring guardianship appointment lets you choose who will make personal, lifestyle and health decisions for you if you lose the capacity to make them yourself. People search for how to notarise one for a range of reasons, and in most of them a notary is not the answer. This page explains when one is, and when what you actually need is a solicitor and the right state form.

This is a state document, and the state decides everything

Enduring guardianship is governed by the law of each Australian state and territory. That law sets:

• the form, which is prescribed and should be the current version from the relevant state
• the name of the document, which differs. Some jurisdictions call it an enduring guardianship appointment; others fold personal and health decisions into a differently named document, sometimes combined with financial decisions and sometimes kept separate
• who may witness it, from a list set by the legislation
• what the witness must certify, typically that you appeared to understand the document and signed voluntarily
• whether the guardian must sign an acceptance, which many forms require

The categories of authorised witness are narrower than people expect, and they are not the same in every jurisdiction. Not everyone who can witness a statutory declaration can witness this. Whether a notary is among the authorised witnesses in your state is something to check against the current legislation or with a solicitor, not assume.

For use within Australia, you do not need a notary. You need the right form, executed before a witness your state authorises.

Get legal advice

This is a capacity document. It decides who speaks for you about where you live and what medical treatment you receive when you cannot speak for yourself. Who to appoint, whether to appoint more than one person, what functions to give them and what conditions to attach are decisions to make with a solicitor. The same goes for how it sits alongside any enduring power of attorney or advance care directive you have. A notary witnesses; they do not advise on any of this.

When a notary is actually involved

This is the point specific to enduring guardianship: the notary's role arises at the border, where Australian state law meets another country, and it runs in both directions.

Using your Australian appointment overseas. If your guardian may need to show the appointment to a hospital or care provider abroad, they will need a notarially certified copy, usually apostilled. But be clear about the limits. An enduring guardianship appointment is a creature of Australian state law. A foreign hospital, care facility or court is not bound to recognise it, and some countries will require their own document or their own court process. Where you spend significant time in another country, take advice there as well.

Signing an Australian appointment while you are overseas. An Australian living abroad who wants to make an appointment under their home state's law faces the witness problem in reverse. A foreign notary may not be an authorised witness under that state's legislation, however official their seal. Check what the state's law allows for documents signed outside Australia before you sign, or the appointment may not be valid when it is needed.

Making another country's equivalent while you are in Australia. If you have a home or family in another country and want a health or personal decision-making document that works there, it should be prepared under that country's law, on its form, with advice from a lawyer there. A notary in Australia can then attend to execution, and DFAT can apostille the notarial certificate. The Australian state form is the wrong document for this.

What the notary checks

Where a notary does attend the signing of a guardianship-type document, they are satisfying themselves of identity, of capacity, and that you are acting freely. For a document that only takes effect when you lose capacity, the assessment at signing is what makes it defensible later. Expect the notary to speak with you alone, and expect any interpreter to be independent rather than a family member who may be appointed.

Keep track of copies

If you later revoke or replace the appointment, certified copies already sent abroad remain in circulation. Keep a list of who holds copies, so you can tell them if anything changes.

Apostille or legalisation

For use overseas, the notarial certificate goes to DFAT: an apostille for a Hague Apostille Convention country, or authentication then embassy legalisation for other countries. No notary can issue an apostille.

What it costs

Notarial fees are not fixed by statute and vary between practitioners. As a market estimate only:

• certified copy of an executed appointment: roughly $80–$150
• attending the execution of a guardianship-type document for overseas use: often $100–$250, reflecting the capacity assessment

What drives the cost up: a guardian's acceptance signed at a separate appointment, several certified copies for several institutions, translation for a non-English-speaking destination, and apostilles charged per document. Legal fees for drafting and advice are separate, and for a document like this they are the part worth paying for.

Frequently asked questions

Is enduring guardianship the same as an enduring power of attorney? Not necessarily. In some jurisdictions they are separate documents covering personal and financial decisions respectively; in others they are combined. Your state's law decides.

Can a Justice of the Peace witness my enduring guardianship form? It depends on your state. Check the current list of authorised witnesses; do not assume.

Will my appointment work in another Australian state? Interstate recognition is dealt with by each jurisdiction's law. Ask a solicitor, particularly if you are moving.