How to Notarise a Guardianship Order in Australia

A guardianship order is made by a tribunal or court, so a notary does not notarise it in the usual sense. The notary certifies a copy for use overseas, after sighting the original or a sealed copy. The real work is checking it is the right, current order, giving the power the overseas institution needs.

Key takeaways

• A notary certifies a copy of the order. The notary does not confirm that you are a guardian or explain what the order allows.
• For an adult, a guardian makes personal decisions and a financial administrator deals with money. A foreign bank usually needs the financial order.
• Read the scope and the dates. An expired, replaced or limited order will be refused however well it is certified.
• Recognition abroad is not automatic. The law of the other country decides whether it accepts an Australian order.
• A Justice of the Peace copy cannot be apostilled and is not accepted overseas.

Which kind of guardianship order do you hold?

"Guardianship order" can mean two different things, and they lead to different questions overseas:

• an order appointing a guardian for an adult who has lost capacity, made by a state or territory tribunal or court; or
• an order about a child, such as a parenting order, or a guardianship or care order made by a family or children's court.

Adult orders usually come up when a family member needs to deal with a bank account, pension, property or care arrangement abroad. Orders about children usually come up with travel, schooling, medical treatment or a passport.

What does the notary actually do?

A notary cannot certify that you are someone's guardian, or explain what the order allows you to do. The notary sights the original order, or the tribunal's or court's own certified or sealed copy. The notary then certifies that the attached copy is a true and complete copy.

What the order means is for the order to say. The foreign institution will read it for itself. On whether it gives you a particular power, or how it works with the law of the other country, see a solicitor. See document notarisation for what a notarial certificate records.

Guardian or financial administrator: which order is needed?

This is the point specific to adult orders, and the most common reason the whole process has to be repeated. Australian jurisdictions generally distinguish between two kinds of appointment for an adult who has lost capacity.

• A guardian makes personal decisions: where the person lives, what health care they receive, who they see.
• A financial administrator or manager deals with money and property.

The names differ between states and territories. The same person may hold both appointments under separate orders, or only one. In some states, a public official, such as a public guardian or public trustee, holds the appointment instead of a family member. Check the order for the name of the person or office appointed.

An overseas bank asked to release funds or close an account usually needs the financial order. A guardianship order in the personal sense may give you no authority over money at all. A foreign bank that reads it carefully will refuse. Before you pay for notarisation, apostilles and translation, check which order gives the power the institution needs, and send that one.

Why do the scope and dates matter?

Orders are often limited. They may cover only certain decisions, such as accommodation and health but not others. They may carry conditions. Many orders also have a review date or an end date.

A foreign institution will read the order literally. If it has expired, or been reviewed and replaced, a certified copy will not help. The same applies if it does not mention the decision you want to make. Obtain the current order and, if it has been renewed, the latest version. Ask the tribunal or court for its own certified or sealed copy if you do not hold the original.

If the order is under review, it is often better to wait. A certified copy of an order about to be replaced may be rejected, and you would pay for the chain twice.

Is an Australian order recognised abroad?

Not automatically. An Australian guardianship or administration order is made under Australian law. Whether it is recognised overseas is a matter for the law of the country concerned. Some institutions accept a certified, apostilled copy. Others, including some courts, require a local process before they will deal with an Australian guardian or administrator.

The receiving authority, whether a bank, registry or court, applies its own law. A small number of countries have joined a Hague convention on the international protection of adults, which deals with recognition. Australia's position on it, and the other country's, should be checked with a lawyer rather than assumed. If significant assets or ongoing care are involved, take advice in that country early.

What about orders concerning children?

Where the order concerns a child, the overseas request is usually about travel, schooling, medical treatment or a passport. The notary can certify copies of the order. The notary can also witness any consent letters or declarations you need to sign.

Whether a child may travel or relocate, and whose consent is needed, is governed by the orders and by family law. Nothing the notary does changes that. If there is any doubt, speak to a family lawyer before arranging travel. For a child's foreign passport, see documents for a foreign passport renewal.

Should you certify the whole order?

Usually yes. Orders can contain sensitive personal and medical information, and it is tempting to certify only the first page. Most foreign authorities want the complete order, including any schedule of conditions. Ask the institution before certifying an extract, because a partial copy is a common reason for rejection.

If the institution agrees to an extract, the notary's certificate should say that the copy is of specified pages only. A certificate that implies completeness when it is not complete would be misleading, and a notary will not sign one.

What happens at the appointment?

1. Bring the order: the original, or the tribunal's or court's certified or sealed copy.
2. Bring photo identification that matches your name as it appears in the order.
3. Bring any overseas forms you must sign on behalf of the person, unsigned.
4. The notary certifies the copy and, if needed, witnesses your signature on the forms.
5. The notary can record the capacity in which you sign, as guardian or administrator.

The person the order concerns does not need to attend. The notary is certifying a document, not assessing anyone's capacity. If you sign forms on the person's behalf, the notary witnesses your signature, not theirs.

Apostille or legalisation?

The notarial certificate then goes to DFAT. For a Hague Apostille Convention country, DFAT issues an apostille; check the HCCH status table on the day. For other countries, DFAT authenticates it and the destination's embassy legalises it. A notary cannot issue an apostille.

A court document can sometimes go to DFAT directly, without a notary. DFAT's page on documents it can legalise includes court documents. Whether a particular tribunal's sealed order qualifies is for DFAT to say, so ask before paying for a notarial certificate you may not need.

Which documents commonly go with the order?

Document	Why it is needed	Usual route
Financial administration order	Bank accounts, pensions, property	Certified copy by a notary, then DFAT
Guardianship order	Care, accommodation, health decisions	Certified copy by a notary, then DFAT
Your passport	Identifying you as the appointee	Notarised copy, sighting the original
Institution's own forms	Instructions to the bank or provider	Signed before the notary, as appointee
Translation	Where the institution reads another language	As the institution specifies

What drives the cost?

We do not give figures, because notarial, DFAT and embassy fees vary and change. What drives the total is the count of documents. Needing both the guardianship and administration orders doubles the chain. So do several institutions each wanting their own set. Long orders with schedules add translation pages. Sending the wrong or an expired order first means paying for everything twice.

Is an enduring guardianship appointment the same thing?

No. An enduring guardianship or enduring power of attorney is made by the person themselves while they have capacity. An order is made by a tribunal or court, usually when no such appointment exists or it has failed. Which one exists, and what it covers, determines what you can show overseas. See notarising an enduring guardianship form and powers of attorney and declarations.

Here is an illustration, not a real case

A son in Canberra holds a financial management order for his father, who has dementia and a bank account in Greece. The Greek bank asks for proof of his authority. He first sends his guardianship order by mistake, and the bank points out that it covers only care decisions. He obtains a sealed copy of the financial order. A notary certifies a complete copy, DFAT apostilles it, and a translator translates it into Greek.

In short

A notary certifies a complete copy of the right, current order; the order itself is the tribunal's or court's. Check guardian against administrator, scope and dates before starting. Recognition abroad depends on the other country's law, so take advice there when much is at stake.

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Sending a guardianship order overseas? Send us what the overseas institution asked for, and we will explain each step before you book.