Powers of attorney, health directives and guardianship in Queensland and NSW

Most people assume that if they became too unwell to decide things, their partner or children could simply step in. Often they can’t, at least not for everything. A bank may not deal with your husband on an account in your name. A daughter can’t sign a contract to sell your house. Doctors will ask who can consent to your treatment.

A few legal documents solve this. They let you choose, while you’re well, who will make decisions for you if you can’t, and they can record what you would want. They’re especially important for anyone thinking about moving, because selling a home, signing a village contract or agreeing to aged care all need someone with the legal power to act.

These documents can only be made while you have capacity. In plain terms, you need to understand what the document is, what it does, and when it starts. A stroke, a fall or dementia can take that away suddenly or slowly. That’s the main reason to do them early.

In Queensland, the main document is an enduring power of attorney, made under the Powers of Attorney Act 1998 (Qld). One document can cover both financial matters (money, property, bills, selling a house) and personal matters (where you live, who you see, everyday care), and personal matters include health care. You can appoint the same people for both, or different people. The state has two approved forms: a short form for when the same attorneys cover everything, or only one type of matter, and a long form for appointing different attorneys for personal and financial matters.

When it starts depends on the type of decision. For financial matters, you choose: a date, an event, or when you lose capacity. If you don’t say, it starts as soon as it’s made. It also works during any time you lack capacity, even if you chose a later start. For personal and health matters, it only works while you lack capacity.

It must be signed in front of an eligible witness: a justice of the peace, commissioner for declarations, notary public or lawyer. The witness can’t be one of your attorneys, a relative of yours or of an attorney, or, if the document covers personal matters, your paid carer or health provider. The witness certifies that you appeared to have capacity. Each attorney must also sign to accept the appointment before they can act.

Attorneys have legal duties. They must keep accurate records and keep your property separate from their own, and there are limits on gifts. These rules were strengthened in reforms that began on 30 November 2020, when the current forms were introduced. Documents validly made before then still work.

There’s no central register in Queensland. An enduring power of attorney only needs registering with the Titles Registry if your attorney will deal with land, such as selling your home.

An advance health directive records your wishes about future health care, under the same Queensland Act. It can say what treatment you would or wouldn’t want, appoint attorneys for health matters, and include directions about life-sustaining treatment. A direction to withhold or withdraw life-sustaining measures only operates in limited circumstances set out in the Act, such as a terminal illness where death is expected within a year.

It must be witnessed by the same kinds of eligible witnesses as an enduring power of attorney, and the witness also can’t be someone who benefits under your will. It also needs a certificate signed by a doctor or nurse practitioner saying you appeared to have capacity when you made it. That person can’t be your witness, an attorney, a relative of yours or of an attorney, or someone who benefits under your will.

Like the health part of an enduring power of attorney, an advance health directive only operates while you can’t make the decision yourself. Talk it through with your GP, and give copies to your doctor, your attorneys and your local hospital.

NSW splits things up. An enduring power of attorney, under the Powers of Attorney Act 2003 (NSW), covers legal and financial matters only. It can’t be used for decisions about your lifestyle or health. The form lets you choose when it starts: once your attorney accepts, once a doctor considers you can’t manage your affairs, once your attorney considers you need help managing them, or another time. If you don’t choose, it starts once the attorney accepts.

In NSW, the enduring power of attorney must be witnessed by a prescribed witness: a solicitor or barrister, a Local Court registrar, or a licensed conveyancer, NSW Trustee and Guardian employee or trustee company employee who has completed an approved course. An attorney can’t be the witness. The witness certifies that they explained the document and that you appeared to understand it. Your attorney must sign an acceptance before they can act.

For lifestyle and health decisions, NSW uses an enduring guardian, appointed under the Guardianship Act 1987 (NSW). An enduring guardian can decide things like where you live, what health care and personal services you get, and consent to medical or dental treatment. The form in use since 1 September 2026 also lets you give your guardian power to consent to, or refuse, a restrictive practice. The appointment only has effect while you can’t make those decisions yourself. It must be witnessed by an eligible witness: a lawyer, a Local Court registrar, or an approved NSW Trustee and Guardian staff member who has done an approved course. Since 1 September 2026, Service NSW staff can no longer witness it. The guardian must sign an acceptance too, also in front of an eligible witness. Appointments made on the earlier form still work.

NSW also recognises advance care directives. These aren’t set out in an Act; they rest on the common law. NSW Health says a valid advance care directive is legally binding and only operates when you can’t decide for yourself. It doesn’t have to be signed or witnessed to be valid, though signing it is recommended. NSW Health has a form and information, but no particular form is required.

As in Queensland, NSW has no central register. An enduring power of attorney only needs registering with NSW Land Registry Services for certain dealings with land.

• Enduring power of attorney: money, property and legal matters
• Enduring guardian: where you live, health care, personal services and medical consent
• Advance care directive: your own written wishes about health care

If you lose capacity without these documents, decisions don’t stop being needed. They just get harder.

For health care, both states have a fallback. In Queensland, a statutory health attorney can make health decisions: the first readily available and culturally appropriate person from your spouse, then an unpaid carer, then a close friend or relative, and if there’s no one, the Public Guardian. In NSW, a “person responsible” can consent to treatment: a guardian with that power, then a spouse or de facto partner, then an unpaid carer, then a close friend or relative. These fallbacks only cover health care, not money.

For money and other decisions, someone may need to apply to a tribunal. In Queensland, that’s the Queensland Civil and Administrative Tribunal (QCAT), which can appoint a guardian for personal matters and an administrator for financial matters. The Public Trustee can be appointed administrator, and the Public Guardian can be appointed guardian if no one else suitable is available. In NSW, it’s the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT), which can appoint a guardian or make a financial management order. NSW Trustee and Guardian can be appointed to manage your money, and the Public Guardian is the guardian of last resort.

Tribunal applications take time, involve forms and hearings, and the person appointed may not be the one you would have chosen. Making your own documents means you choose.

An enduring power of attorney doesn’t automatically let someone deal with Centrelink. Services Australia has its own nominee arrangements: a correspondence nominee who receives letters, and a payment nominee who receives payments. A power of attorney can be used to set this up if it shows the person can act for you on financial matters.

Aged care has its own arrangement too. Since 1 November 2025, under the Aged Care Act 2024, you can register supporters with My Aged Care, who can help you make decisions and communicate your wishes. My Aged Care says it can’t give anyone the power to make decisions for you; that power still comes from your state documents. A person with an active enduring power of attorney or guardianship can register as a supporter by providing proof.

If you move between Queensland and NSW, each state generally recognises an enduring power of attorney validly made in the other, but only to the extent the powers could have been given in the new state. Because the documents differ, it’s worth asking a solicitor whether to make new ones after a move.

Choose people you trust, who know your values, and who will speak up for you even when it’s hard. Talk to them before you appoint them. Tell them what matters to you: where you’d want to live, what care you would and wouldn’t want, and how you’d like money matters handled. You can appoint more than one person and say whether they act together or separately.

Help is available, some of it free:

• Queensland: the Public Trustee prepares wills free of charge, and prepares enduring powers of attorney for a fee. The Office of the Public Guardian and the Queensland Government have plain-English information and the approved forms.
• Queensland: Seniors Legal and Support Services in many regions give free legal advice to people over 60, including on making or revoking a power of attorney. The Queensland Government lists them. Legal Aid Queensland can also point you to community legal help.
• NSW: NSW Trustee and Guardian prepares wills, enduring powers of attorney and enduring guardian appointments. They’re free if you’re eligible for a full Age Pension, or you get a DVA pension or Disability Support Pension and would otherwise qualify for a full Age Pension. There’s a fee otherwise.
• NSW: LawAccess NSW (1300 888 529), Legal Aid NSW and Seniors Rights Service (1800 424 079) offer free legal information and advice.
• Both states: the National Advance Care Planning Support Service (1300 208 582) has free information about advance care planning.