How to Notarise an Enduring Guardianship Form in Australia

For use within Australia, you usually do not notarise an enduring guardianship form. You sign your state or territory's current form before a witness its law authorises. A notary becomes involved at the border: certifying a copy for a guardian to show abroad, or witnessing a foreign equivalent. Legal advice from a solicitor matters more than either.

Key takeaways

• 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.
• It is governed by state or territory law, which sets the form, the name, who may witness it and what the witness certifies. These differ across Australia.
• For Australian use you need the right form and an authorised witness, not a notary. Check whether a notary is on your state's list rather than assuming.
• A notary helps with overseas use: a certified copy, usually apostilled, although a foreign hospital or court is not bound to recognise it.
• Who to appoint and on what terms is a decision to make with a solicitor. A notary witnesses; a notary does not advise.

A state document, and the state decides

People search for how to notarise an enduring guardianship form for many reasons, and in most of them a notary is not the answer. Enduring guardianship is governed by the law of each Australian state and territory. That law sets:

• the form, which is prescribed, and which should be the current version from the relevant state or territory;
• the name of the document, which differs. Some jurisdictions call it an enduring guardianship appointment. Others place personal and health decisions in a differently named document, sometimes combined with financial decisions and sometimes kept separate, and some use an advance care directive or similar document for health matters;
• 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 it 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 or territory is something to check against the current law or with a solicitor. The public guardian or the guardianship tribunal in your state usually publishes the current form and plain-language guidance.

So for use within Australia, the answer is not a notary. It is the right form, completed with advice, and signed before a witness your state or territory authorises.

Get legal advice first

This is a capacity document. It decides who speaks for you about where you live, who you see and what medical treatment you receive when you cannot speak for yourself. Who to appoint, whether to appoint more than one person and how they must act together, what functions to give them, and what conditions or directions to attach are decisions to make with a solicitor.

So is how the appointment sits alongside any enduring power of attorney, advance care directive or will you already have, and what happens if you move interstate. Recognition between Australian states and territories is dealt with by each jurisdiction's law. A notary witnesses signatures and certifies copies; a notary does not advise on any of this, and a solicitor's advice is the part of the process most worth paying for. For financial decisions, see powers of attorney and legal declarations.

When a notary is actually involved

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

Using your Australian appointment overseas. If your guardian may need to show the appointment to a hospital, care provider or authority abroad, they will need a notarially certified copy, usually with an apostille or authentication from DFAT. Be clear about the limits. An enduring guardianship appointment is a creature of Australian state or territory law. A foreign hospital, care facility or court is not bound to recognise it, and some countries require their own document or their own court process before anyone can decide for you. If 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 law, however official their seal. Check what the law allows for documents signed outside Australia before you sign, or the appointment may not be valid when it is needed. Some Australian embassies and consulates offer notarial services; see notarial services at Australian embassies, and confirm with a solicitor whether that is enough for your state.

Making another country's equivalent while you are in Australia. If you have a home or family in another country and want a personal or health 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 the signing, and DFAT can apostille or authenticate the notarial certificate. The Australian state form is the wrong document for that job.

What the notary checks at a signing

Where a notary does attend the signing of a guardianship-type document, they are satisfying themselves of three things: your identity, your capacity to understand what you are signing, and that you are acting freely. For a document that only matters once you have lost capacity, the assessment at signing is what makes it defensible later.

Expect the notary to speak with you alone for part of the appointment. Expect any interpreter to be independent, rather than a family member who may be appointed. If there is any doubt about capacity, the notary may decline, and a solicitor may suggest a medical opinion first. How a notary checks capacity and duress explains these checks.

Certified copies for a guardian abroad, step by step

1. Make the appointment properly first, under your state or territory's law, with the guardian's acceptance if the form requires it.
2. Ask the overseas institution what it will look at: a certified copy, an apostille, a translation, or its own form.
3. Take the signed original to a notary, who compares it with the copy and certifies the copy. The notary does not re-witness the appointment.
4. Send the notarised copy to DFAT for an apostille or authentication. An apostille confirms the notary's signature and seal, not the appointment's validity. Check the destination on the HCCH status table on the day.
5. Translate if needed, in the order the institution asks for.
6. Record who holds copies, so you can tell them if you revoke or replace the appointment.

A copy certified by a Justice of the Peace may be accepted by some Australian bodies, but it is not accepted overseas and DFAT will not apostille it. Apostille and authentication explains the DFAT step.

Your situation	What you need	Notary?
Appointment for use in Australia	Current state form, authorised witness, advice	Only if your state lists notaries as witnesses
Guardian must show it abroad	Notarised copy, apostille or authentication	Yes, for the copy
You are overseas and signing an Australian form	What your state allows abroad	Check with a solicitor first
Foreign equivalent document	A lawyer in that country, their form	Often, then DFAT
A tribunal or court order	A different document altogether	For certified copies only

Keep track of copies

If you later revoke or replace the appointment, certified copies already sent abroad remain in circulation, and nothing automatically withdraws them. Keep a list of who holds copies, including any overseas hospital, insurer or relative, so that you can tell them if anything changes. Your solicitor can explain how revocation works under your state's law.

Here is an illustration, not a real case

A retired woman in Canberra spends several months a year with her son in another country. With her solicitor she makes an enduring appointment under ACT law for personal and health matters, witnessed as the ACT form requires. No notary is involved in that. Her solicitor points out that a hospital abroad may not recognise the Australian document, so she also consults a lawyer in the other country, who prepares that country's own advance decision document. She signs that one before a notary in Canberra, who first speaks with her alone, and DFAT apostilles the notary's certificate. Her son keeps a notarised, apostilled copy of the Australian appointment as well.

In short

For Australian use, an enduring guardianship form needs the current state or territory form, an authorised witness and advice, not a notary. A notary becomes involved when the appointment or an equivalent must work abroad, and even then a foreign hospital or court decides whether to recognise it. For orders made by a tribunal, see guardianship orders and a notary.

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