Legal information

Powers of attorney, enduring powers of attorney, and enduring guardians

If you need help managing your affairs, you can choose to give someone you know and trust, or a specialist organisation (such as the Public Trustee and Guardian in NSW) the power to make decisions for you. This will allow the person to manage your affairs when you do not want to, or are no longer able to. For example, a person may find it hard to sign documents because they have poor eyesight or unsteady hands.

Depending on your situation, this may include:

• the power to make decisions about your financial and legal affairs
• decisions about your lifestyle (including where you live) and what medical or health treatment you should receive.

Guardianship and administrators

If you have not formally appointed someone to manage your affairs (under a power of attorney) and it becomes necessary to do so, a guardianship board or tribunal can appoint a guardian and/or administrator on your behalf.

A guardian (who could be a family member or friend), is a substitute decision maker who may make lifestyle decisions, such as where a person should live, as well as give their consent to medical, dental and health care services generally.

An administrator acts as a financial manager and looks after a person's property and finances.

There are several factors that the guardianship board or tribunal will take into account before making a decision to appoint a guardian or administrator, including:

• your ability to manage your own affairs
• any relevant medical or health conditions that might affect your ability to make decisions – such as dementia, intellectual disability, mental illness, or acquired brain injury
• whether it is in your best interests to have a guardian or administrator appointed.

The rules are different in each state and territory, so contact the relevant authority where you live, or your legal adviser, for details on the guardianship and administration laws in your state or territory.

• Australian Capital Territory
• New South Wales
• Northern Territory
• Queensland
• South Australia
• Tasmania
• Victoria
• Western Australia

Legal documents to become an authorised representative in My Aged Care

An authorised representative is only required where an older person does not have capacity and is unable to provide consent for someone to represent them.

The legal documents that you need to provide My Aged Care to become an authorised representative show us that you can legally make health, personal and lifestyle decisions for someone. The documents required vary from state to state.

Some common legal documents that My Aged Care need include guardianship, or any of the following documents that are supported by a letter from a medical practitioner stating that the person is unable to act on their own behalf:

• enduring power of attorney (ACT, Queensland and Victoria only)
• Advance Health Directive (ACT and WA not included), or similar
• enduring guardianship.

Based on legal advice, medical evidence is required in addition to the above documents to establish an authorised representative, as they do not provide sufficient evidence on their own that the person has lost decision-making capacity.

You will need to send this documentation to My Aged Care with the Appointment of a support person form to become an authorised representative.

What if there is no legal representative in place?

A family member or someone you care for may no longer be able to make decisions and may have not nominated someone to act for them.

If you are the best person to act for them, you can give the following documents to My Aged Care to appoint you as an authorised representative to support the person:

• a statutory declaration stating you are the most appropriate person to represent them and there is no formal legal representative in place, and
• a letter from a medical practitioner stating they are unable to act on their own behalf.

Any decisions you make for someone about their aged care must be in their interest and any information you give must be accurate and correct.

Read more about how to set up a representative on our page on arranging someone to support you.