Notarising a Document for Someone in Hospital or Aged Care

It can be done, but the notary's usual checks matter more, not less. The person must understand the document, sign freely and prove who they are. A notary may speak to them alone or seek a doctor's view, and may decline. Many hospital documents are for Australian use and need a JP or solicitor, not a notary.

Key takeaways

• A notary must be satisfied the person has capacity, is signing freely, and is who they say they are; illness does not lower that bar.
• A notary is usually needed only if the document is going overseas; for Australian use, a JP or other authorised witness often suffices.
• Enduring powers of attorney, advance care directives and wills are governed by state or territory rules; ask a solicitor.
• The notary may ask to see the person alone and may ask for a medical opinion on capacity.
• The person needs identity documents, which are often at home; a hospital wristband is not identification.
• If the person lacks capacity, they cannot sign; the family may need a tribunal or court order instead.

Does the document need a notary at all?

Start here, because it changes everything else. Many documents people need signed in hospital or aged care are Australian: an enduring power of attorney, an appointment of an enduring guardian, an advance care directive, a statutory declaration for a bank or insurer, a superannuation form. These are governed by Australian rules, which say who may witness them. A notary is rarely required, and for some state documents the prescribed witnesses are a lawyer, a JP or other listed people.

DFAT's page on notarial services puts it simply: in Australia, use a notary for most notarial services for overseas use, and see a JP to witness signatures or certify copies. A notary is the right person when the document is going to a foreign authority, such as a foreign pension office asking for a life certificate, an overseas bank, or a property registry in another country. For wills, enduring documents and anything that affects the person's affairs in Australia, talk to a solicitor first. Our guides to enduring guardianship forms and proof of life certificates cover two common cases.

What does the notary have to be satisfied of?

An Australian notary witnessing a signature or taking an oath checks three things: identity, understanding and free will. In a hospital or aged care setting, each needs more care.

Capacity. The person must understand what the document is, what it does, and the consequences of signing it. Illness, pain, medication, fatigue and cognitive decline can all affect that, sometimes from hour to hour. A notary will usually talk with the person about the document in their own words, and may ask about their condition or medication. If there is doubt, the notary may ask for a written opinion from a treating doctor about the person's capacity to make that particular decision, or may decline. Our guide to capacity and duress checks explains what a notary looks for.

Free will. The person must be signing because they want to, not because a relative or carer is pressing them. A notary will often ask family members to step out while they speak with the person alone, especially if someone present benefits from the document. That is standard practice, not an accusation.

Identity. The person must prove who they are with acceptable identification. Passports and driver licences are often at home, and a hospital wristband or a facility's resident list does not replace them. Arrange for the identity documents to be brought before the appointment.

What about the hospital or facility?

Hospitals and aged care homes have their own rules about visitors, visiting times, infection control and privacy, and some have staff who help residents with legal paperwork. Before arranging anything, speak with the nurse unit manager, the facility manager or the social work team. Ask whether a visitor can attend for a legal appointment, whether a private room is available, and whether any health restrictions apply. Staff generally will not act as witnesses themselves, and some facilities have policies against it.

Timing matters too. If the person is more alert at a certain time of day, or between doses of medication, tell the notary. A rushed appointment at the end of a long day of treatment is more likely to end with the notary declining. And if the person's condition is changing quickly, raise that with the family's solicitor straight away rather than waiting for a convenient day.

Document	Usually witnessed by	Notes
Enduring power of attorney, Australian	Witnesses prescribed by that state or territory	See a solicitor; rules and forms differ
Advance care directive or enduring guardian	Witnesses prescribed by that state or territory	Some forms need a doctor's or lawyer's input
Will	Two adult witnesses under state rules	See a solicitor; a notary is not required
Commonwealth statutory declaration	An approved witness, in person or by video	Also possible digitally through myGov
Foreign pension life certificate	Often a notary, or as the pension office specifies	Follow the foreign office's instructions
Power of attorney for property overseas	A notary, then DFAT if asked	The foreign authority sets the form

What if the person cannot sign physically?

Some people have capacity but cannot hold a pen because of a stroke, injury or frailty. Depending on the document and the rules that govern it, they may be able to sign with a mark, or another person may be able to sign at their direction and in their presence, with the witness recording what happened. These rules differ between Australian states and territories, and foreign authorities have their own views, so do not improvise. Ask the solicitor or the receiving authority what is acceptable, and tell the notary in advance so they can prepare the certificate correctly.

What if the person no longer has capacity?

Then they cannot sign, and no notary, JP or solicitor can witness a document for them. That is often the hardest conversation for families. If the person made an enduring power of attorney or appointed an enduring guardian while they had capacity, that document may already allow someone to act. If not, the family may need to apply to the relevant state or territory tribunal or court for a guardianship or administration order. A solicitor can explain the options. Our guide to guardianship orders explains what happens when an order has to be used overseas.

Can it be done by video?

Sometimes. The Attorney-General's Department says a Commonwealth statutory declaration can be witnessed by an approved witness over a video link, or made digitally through myGov. Some states and territories allow some other documents to be witnessed by audio-visual link. For a document going overseas, whether a remotely notarised document is accepted is decided by the receiving authority, and many still expect an in-person act. Video can also make the capacity and free-will checks harder, because the witness cannot see who else is in the room. Ask the witness and the receiving authority before relying on it. Our guide to remote notarisation covers how it usually works.

How do you prepare for a signing in hospital or aged care?

1. Confirm the document and who must witness it. Ask the solicitor or the receiving authority whether it needs a notary, a JP or a prescribed witness.
2. Speak to the care team. Ask when the person is most alert, and whether there are concerns about capacity.
3. Check the facility's rules. Visiting times, health restrictions and whether a private room is available.
4. Gather identity documents. Bring the person's passport, driver licence or other accepted identification.
5. Send the document ahead. Give the witness a copy in advance, with any translation.
6. Allow private time. Expect the witness to speak with the person alone before signing.
7. Have a fallback. If the witness declines, ask the solicitor about the next step rather than trying someone else the same day.

Common mistakes to avoid

The most common mistake is arranging a notary for an Australian enduring power of attorney that the state's rules say must be witnessed by other people. The second is arriving without the person's identity documents. The third is a family member who benefits from the document insisting on staying in the room. The fourth is booking the appointment at a time when the person is sedated or exhausted. Finally, a notary declining is not something to work around by finding another witness who asks fewer questions; a document signed without capacity can be challenged later.

Here is an illustration, not a real case.

Mr Kowalski, in an aged care home in Geelong, receives a life certificate from a Polish pension office asking for his signature to be witnessed. His daughter speaks to the facility manager, who arranges a quiet room in the morning, when he is most alert. She finds his passport at home, checks the form's instructions with the pension office, and arranges a notary. The notary speaks with Mr Kowalski alone before witnessing his signature.

In short

A document can be notarised for someone in hospital or aged care, but the notary must still be satisfied of the person's identity, understanding and free will, and may decline. Most such documents are for Australian use and need a JP, a prescribed witness or a solicitor rather than a notary. Plan with the care team, bring identity documents, and allow the witness private time with the person. Our power of attorney and legal declarations page covers documents for use overseas.

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