Most people who come to see us about a Will end up asking a related question: what happens if I don’t die, but I lose the ability to make decisions for myself? In New South Wales, the law answers that question with two separate documents — an enduring power of attorney and an enduring guardianship appointment. They sound similar. They are not the same thing, and relying on only one of them can leave a real gap in your planning.
Two Documents, Two Different Jobs
The confusion is understandable, because both documents do the same basic job in principle: they let you choose, in advance, who will make decisions for you if you later can’t make them yourself. Where they differ is in what kind of decisions each one covers.
An enduring power of attorney — created under the Powers of Attorney Act 2003 (NSW) — deals with your financial and property affairs. It lets your chosen attorney pay your bills, manage your bank accounts, sell property on your behalf, or deal with your superannuation, once the power comes into effect.
An enduring guardianship appointment — made under the Guardianship Act 1987 (NSW) — deals with your personal, health, and lifestyle decisions. It lets your chosen guardian decide things like where you live, what medical or dental treatment you receive, and what personal services or care you access, if you lose the capacity to decide these things yourself.
Put simply: the attorney looks after your money. The guardian looks after you.
What an Enduring Power of Attorney Covers
A general power of attorney ends the moment you lose mental capacity — which somewhat defeats the purpose if the whole point is to have someone step in during exactly that circumstance. An enduring power of attorney is different. Under section 19 of the Powers of Attorney Act 2003 (NSW), it is specifically designed to continue operating even after you lose capacity, provided it was validly created while you still had it.
To be valid, the instrument must be witnessed by a prescribed witness — typically a solicitor, licensed conveyancer, or a registrar of the Local Court — who certifies that they explained the effect of the document and that you appeared to understand it. Your attorney also has to formally accept the appointment before it can operate.
An attorney appointed this way can typically:
- Manage your bank accounts and pay your ongoing expenses
- Buy, sell, or lease property on your behalf
- Deal with investments, shares, or superannuation entitlements
- Sign contracts and legal documents relating to your financial affairs
What an attorney cannot do — regardless of how broadly the document is drafted — is make personal or health decisions for you. That’s where an enduring guardian comes in.
What an Enduring Guardian Covers
Enduring guardianship appointments are made under the Guardianship Act 1987 (NSW), which under section 6 allows an adult with capacity to appoint one or more people to make personal decisions on their behalf if they later become “a person in need of a guardian” under the Act. Like an enduring power of attorney, the appointment must be properly witnessed, and it only takes effect once you have actually lost the relevant capacity — it cannot be used while you are still capable of deciding for yourself.
An enduring guardian can typically be authorised to make decisions about:
- Where you live — including decisions about moving into residential aged care
- What health care, medical, or dental treatment you receive
- What personal services and support you access, such as home care or disability services
- Consenting to medical or dental treatment on your behalf, within the limits set by the Act
One limit is worth stating clearly: an enduring guardian cannot make financial decisions, and if you object to a particular medical treatment, your guardian generally cannot override that objection.
Comparison at a Glance
| Enduring Power of Attorney | Enduring Guardianship | |
| Governing legislation | Powers of Attorney Act 2003 (NSW) | Guardianship Act 1987 (NSW) |
| Covers | Financial and property matters | Personal, health, and lifestyle matters |
| Takes effect | Can operate immediately or only on loss of capacity, depending on how it’s drafted | Only on loss of capacity |
| Can make financial decisions? | Yes | No |
| Can make health/lifestyle decisions? | No | Yes |
| Reviewed by | NCAT or the Supreme Court | NCAT (Guardianship Division) or the Supreme Court |
Key Requirements for Both Appointments
- You must have decision-making capacity at the time you sign. Neither document can be made on your behalf once capacity is already lost.
- You must be an adult. Both appointments require the person making them to be over 18.
- The appointment must be properly witnessed by a prescribed or eligible witness, who certifies that the effect of the document was explained to you and that you appeared to understand it.
- Your chosen attorney or guardian must formally accept the role before it can take effect.
- You can appoint more than one person, and specify whether they must act jointly, severally, or jointly and severally.
A Common Misconception
The most common misunderstanding we see is people assuming that appointing an attorney covers everything — finances and health decisions alike. It doesn’t. We also regularly see the reverse assumption: that a Will covers what happens if you lose capacity while still alive. It doesn’t either — a Will only takes effect after death. An enduring power of attorney and an enduring guardianship appointment are the tools that operate during your lifetime, in the gap a Will can’t reach.
Both documents can also be reviewed by the NSW Civil and Administrative Tribunal (NCAT) — the Guardianship Division specifically has the power to confirm, vary, or revoke an enduring guardianship appointment where there is a genuine concern about how it’s operating, and a comparable review pathway exists for powers of attorney.
Practical First Steps
- Consider both documents together, not just one. They address entirely different risks, and having only one leaves a genuine gap.
- Choose people you trust completely, since both roles carry significant authority over your affairs with limited day-to-day oversight.
- Be specific about functions and limitations — you can tailor an enduring guardian’s authority to particular categories of decision if you don’t want to grant blanket authority.
- Keep the originals somewhere accessible, and give copies to your attorney, guardian, doctor, and — ideally — whoever holds your Will.
- Review both appointments periodically, particularly after a significant life change such as separation, since marriage can automatically revoke an earlier enduring guardianship appointment.
The Bottom Line
An enduring power of attorney and an enduring guardianship appointment do different jobs, and neither one substitutes for the other. Getting both in place while you have capacity means the people you trust — rather than a tribunal, or nobody at all — are the ones making decisions on your behalf if you ever need them to.
If you’re putting an estate plan together and want to make sure both your financial and personal affairs are properly covered, don’t hesitate to get in touch with one of our friendly Estate Planning Lawyers Central Coast. We can also help if you’re dealing with questions around capacity and these appointments, or if you need to review or challenge an existing power of attorney at NCAT. Contact us to arrange a time to talk through your situation.
