What is the difference between an attorney and a guardian?

NSW splits decision making into 2 separate documents. An enduring power of attorney covers your money and property. An appointment of enduring guardian covers your personal life: your health care, medical treatment and where you live. Neither document can do the other's job.

Throughout this guide we use the Doe family as an example. Jane (48) and John (50) are married and live in Western Sydney. They own their home as joint tenants and an investment unit in Penrith as tenants in common, and John runs Doe Plumbing Pty Ltd as its sole director.

General vs enduring power of attorney: which do you need?

A general power of attorney lets someone act for you on financial matters, but it stops working if you lose mental capacity. It suits a short-term need, such as someone signing documents for you while you are overseas.

An enduring power of attorney keeps working after you lose capacity. That is the whole point of it, and it is why the signing rules are stricter. For estate planning, the enduring version is the one that matters.

Who can witness an enduring power of attorney?

It must be signed in front of a prescribed witness, who signs a certificate that they explained the document and you appeared to understand it. Prescribed witnesses include:

• Lawyers: an Australian legal practitioner, or in some cases a lawyer qualified overseas.
• Local Court registrars: availability varies between courts, and a registrar may decline to witness in some cases.
• Licensed conveyancers and certain trustee employees: only where they have completed an approved course.

Your attorney cannot be your witness. Your attorney must also sign the document to accept the appointment before they can act.

When does an enduring power of attorney start?

You choose when you sign it. The NSW form offers 3 options, plus a space to set your own terms.

• Once your attorney accepts: the power can be used as soon as your attorney signs, even while you are well. This is the most practical option because nobody has to prove anything later, but it relies on trust.
• Once a medical practitioner provides a document: the power starts when a doctor states in writing that you cannot manage your affairs. It guards against early use, but it causes delay after a sudden accident or where capacity comes and goes, and banks will ask to see the document.
• Once your attorney considers you need help: no medical document is needed, but it depends on your attorney's judgement and third parties may still ask for evidence.
• Other: you can set a date or event of your own, which should be drafted carefully so a bank or NSW Land Registry Services can tell whether it has happened.

If no option is ticked, the power starts once your attorney accepts. Whichever you choose, it ends on your death.

What must an attorney do?

Your attorney must:

• Act in your interests: every decision must be made for your benefit, not theirs or the family's.
• Keep your money separate: your money must be kept apart from their own, not paid into their personal account.
• Keep records: they should keep accounts and receipts of what they do, because they may have to explain their decisions later.
• Stay within their authority: an attorney cannot make gifts from your money or give themselves a benefit unless your document allows it, and cannot hand the role to someone else unless the document expressly allows it.

An attorney who misuses the power can be ordered to repay the money and may commit an offence. If family members are concerned, they can ask the NSW Civil and Administrative Tribunal (NCAT) or the Supreme Court to review how the power is being used.

You can appoint more than 1 attorney and say whether they must act together or can act alone, and you can name a substitute in case your first choice cannot act.

Do I need to register a power of attorney?

Only if it will be used for land. A transfer, mortgage or other dealing with NSW real estate signed by your attorney has no effect unless the power of attorney is registered with NSW Land Registry Services. Some short leases are an exception. Banks and other institutions do not need it registered, although they usually ask to see the original or a certified copy.

For the Does, registration matters because both the home and the Penrith unit are land.

How is an enduring power of attorney cancelled, and what ends it?

• Your death: the power ends automatically. From then on your executor deals with your estate under your will.
• Revocation by you: while you still have capacity, sign a written revocation, give it to your attorney, and tell your bank and anyone else who relied on the power. If it was registered with NSW Land Registry Services, register the revocation too.
• Tribunal or court orders: NCAT or the Supreme Court can revoke or vary the power if the attorney is not acting properly. A financial management order made by NCAT or a court can also suspend or end the attorney's power over the property it covers.
• The attorney stops being able to act: for example, if your attorney dies, becomes bankrupt or loses capacity. This is why a substitute is worth naming.

Making a new power of attorney does not automatically cancel an earlier one, so the old one should be revoked expressly. Once you lose capacity you cannot revoke it yourself.

What does an enduring guardian do?

Your enduring guardian makes personal and lifestyle decisions for you if you cannot. You choose which functions they have, and the usual ones are:

• Where you live: for example, whether you return home or move into residential aged care.
• Health care: the health care you receive.
• Medical and dental treatment: consenting to, or refusing, treatment on your behalf.
• Personal services: the support services you receive, such as in-home care.

You can add directions, for example that your guardian follow your advance care directive. Some serious treatments still need NCAT's consent whoever your guardian is.

When does it operate?

Unlike a power of attorney, an enduring guardian can only act once you have lost the capacity to make the decision yourself. If capacity returns, the decision goes back to you. Like the power of attorney, it must be signed in front of an eligible witness, such as a lawyer, and accepted in writing by your guardian. It ends on your death.

Marriage cancels an enduring guardian appointment

If you marry after signing, your appointment of enduring guardian is automatically revoked, unless you marry the person you appointed. Marriage does not affect an enduring power of attorney. Anyone who marries, including a widowed parent who remarries, should sign a new appointment. Marriage also revokes a will made before it, with some exceptions, such as a will made in contemplation of that marriage.

What happens if I have no enduring guardian?

For most medical and dental treatment, a doctor or dentist can ask your "person responsible" to consent. NSW law sets a fixed order:

1. Guardian: a guardian, including an enduring guardian, who has the function of consenting to medical treatment.
2. Spouse or partner: your spouse or de facto partner, if the relationship is close and continuing.
3. Unpaid carer: a person who cares for you without being paid for it.
4. Close friend or relative: someone with a close personal relationship with you who sees you often.

A person responsible can only consent to treatment. They cannot decide where you live. For that, or where family members disagree, someone must apply to NCAT for a guardianship order. NCAT may appoint a family member or friend, or, if no one suitable is available, the Public Guardian, a government official who then makes those decisions for you.

The same applies to money. Without an enduring power of attorney, your family may need an NCAT financial management order before they can deal with your bank accounts or property, and the manager may be the NSW Trustee and Guardian rather than someone you would have chosen. Applications take time, and the family has no authority while they wait.

What is an advance care directive?

An advance care directive records your own wishes about future medical treatment, for example whether you want life support or resuscitation in particular circumstances. There is no set NSW form. It is separate from, and works alongside, an appointment of enduring guardian: the directive says what you want, and the guardian makes decisions the directive does not cover. Talk to your doctor when preparing one, and give your guardian a copy.

Does my power of attorney cover my company?

No. Your personal enduring power of attorney covers what you own, not what your company owns. A company is a separate legal person and needs its own company power of attorney. If John has a stroke, Jane can run his personal affairs under his enduring power of attorney, but signing a supplier contract or lease for Doe Plumbing is a company matter and may need a company power of attorney or another authority from the company. The same applies to a company that is trustee of a family trust or an SMSF.

Putting it together

Most adults need both documents, signed while they are well. They sit alongside your will, which takes over on death, as part of your estate plan. If you are also making a will or reviewing a binding death benefit nomination, it is efficient to deal with everything at once. See our estate planning page for the documents and fixed fees.

This article is general information only, current as at October 2026, and is not legal, financial or tax advice. Estate planning, tax and Centrelink rules change over time and their effect depends on your circumstances. You should obtain advice specific to your situation before acting.