Advance Care Directive NSW: How to Set Up Your Documents

Most people assume there is a government-issued form for an advance care directive in New South Wales. There is not. NSW operates entirely on common law, which means your directive is a legal document drafted in plain language — not a government form you fill in and sign. That distinction matters enormously when a family is relying on it under pressure.

Here is what you need to know to create valid documents in NSW, and what happens to them when the time comes.

What Is an Advance Care Directive in NSW?

An advance care directive (sometimes called an advance care plan or advance health directive) is a written statement of your wishes about medical treatment — what you want, what you refuse, and who should be consulted. In most Australian states and territories, legislation prescribes a specific form. NSW has never passed such a law.

Instead, NSW relies on the common law principle established in cases like Hunter and New England Area Health Service v A (2009): a competent adult has the right to refuse medical treatment, and a written refusal made while the person had decision-making capacity is binding on treating clinicians.

What that means practically:

• There is no mandatory NSW Advance Care Directive form you must use
• Any clear, written statement of your treatment wishes qualifies
• A refusal of treatment (for example, refusing CPR, ventilation, or artificial nutrition) is legally binding on medical professionals if it was written while you had capacity and the clinical situation matches what you described
• A request for treatment — "I want every measure taken" — is not legally binding but is a strong statement of preference that clinicians will take seriously

NSW Health publishes an Advance Care Planning document template as a guide, but using it is optional. The documents are advisory, not mandatory, and are honoured through clinical ethics frameworks rather than statute.

The Three Documents NSW Families Need

Advance care planning in NSW usually involves three distinct instruments, each serving a different purpose. They are easy to confuse, and conflating them creates problems.

1. The Advance Care Directive

This is your written statement of medical treatment preferences. It speaks when you cannot. It becomes operational when you lose decision-making capacity — whether temporarily (unconscious after an accident) or permanently (late-stage dementia). Without it, medical decisions default to substitute decision-makers, who may not know what you would have wanted.

A well-drafted directive answers questions like:

• Under what circumstances would you refuse life-sustaining treatment?
• What matters most to you — length of life, or quality of life and pain management?
• Are there specific treatments you want withheld or withdrawn?
• Where do you want to die if possible?

It does not need to be witnessed by a solicitor to be valid, though having a medical professional and a witness sign and date it adds evidential weight.

2. The Enduring Guardian

An enduring guardian is the person you appoint to make lifestyle and healthcare decisions on your behalf if you lose capacity. This includes decisions about where you live, what medical treatment you receive, and what support services you access.

The critical NSW requirement is witnessing. Under the Guardianship Act 1987 (NSW), the appointment must be witnessed by a person who is not a relative, beneficiary, or the proposed guardian themselves — and one of the witnesses must be an eligible person such as a solicitor, barrister, registrar of a local court, or employee of the NSW Trustee and Guardian. Without a qualified witness, the appointment is invalid.

An enduring guardianship and an advance care directive work together: the directive tells clinicians your wishes, and the guardian advocates for those wishes and makes decisions on matters the directive does not cover.

3. Enduring Power of Attorney (EPOA)

An enduring power of attorney covers financial and legal decisions — not healthcare. You appoint an attorney (a trusted person, often a spouse or adult child) to manage your assets, pay your bills, and handle legal transactions if you become incapacitated. Unlike a general power of attorney, an enduring power survives incapacity.

In NSW, enduring powers of attorney are governed by the Powers of Attorney Act 2003. One requirement catches families by surprise: if your attorney will need to manage, sell, or mortgage real estate on your behalf, the enduring power of attorney must be registered with NSW Land Registry Services (LRS). The registration fee is $175.70 for the 2025/2026 financial year and $182.71 from July 2026.

An unregistered EPOA is still valid for financial transactions that don't involve real property — bank accounts, share portfolios, superannuation — but the attorney simply cannot deal with land or property without registration. If you own property and lose capacity before your attorney registers the document, the situation becomes significantly more complicated.

What Happens to These Documents When You Lose Capacity?

The advance care directive goes to the treating medical team. In NSW hospitals, nursing staff are required to ask about advance care plans on admission. If one exists, it is scanned into the patient's My Health Record or hospital file and flagged for clinicians.

The enduring guardian is contacted when medical staff need to make treatment decisions requiring a substitute decision-maker. They hold the legal authority to consent to (or refuse) treatment in accordance with your expressed wishes.

The enduring attorney manages financial affairs — paying ongoing bills, managing investments, and handling any property transactions — while you are incapacitated.

None of these documents override each other. They cover different domains: medical treatment (directive + guardian) and financial affairs (attorney).

What Happens If You Have None of These?

Without an advance care directive, your wishes are unknown. Medical teams make decisions based on standard care protocols and what family members report you would have wanted — which may not reflect your actual preferences.

Without an enduring guardian, the next-of-kin hierarchy under the Guardianship Act 1987 determines who speaks for you: spouse first, then carer, then adult children, then other relatives. Blended families with contested relationships can turn this into a dispute at the worst possible moment.

Without an enduring power of attorney, no one can legally manage your finances during incapacity unless they apply to the NSW Civil and Administrative Tribunal (NCAT) for a financial management order, appointing either a private manager or the NSW Trustee and Guardian. NCAT applications take time and cost money — and the NSW Trustee charges ongoing management fees that reduce the value of your estate.

Common Mistakes NSW Families Make

Using an interstate or generic form. Forms from Victoria, Queensland, or commercial template sites may not reflect NSW common law requirements. If the document describes rights that don't exist under NSW law, it creates confusion for clinicians who need to act quickly.

Forgetting the EPOA registration for property. People create an enduring power of attorney, store it with their will, and assume it is ready to use. If property is involved and the attorney discovers the document is unregistered only after capacity is lost, they must apply to LRS with supporting evidence of the incapacity — a much more complicated process.

Not reviewing documents after major life changes. A divorce, a remarriage, a falling-out with the named guardian or attorney — any of these should prompt a review. A document naming an ex-spouse as enduring guardian is still legally valid until revoked.

Storing documents where no one can find them. The best-drafted advance care directive is useless if it sits in a filing cabinet that no one opens in time. Keep the original at home in a known location, leave a copy with your GP, and consider uploading it to your My Health Record.

Where to Get Help in NSW

The NSW Trustee and Guardian provides standard EPOA and enduring guardianship forms and can act as a professional witness. The service is particularly useful for people without access to a solicitor.

For anyone who wants to draft a more detailed advance care directive, Advance Care Planning Australia (advancecareplanning.org.au) provides NSW-specific guidance and template language, including sample statements for common clinical scenarios.

If you are helping an older parent with these documents — or working through your own estate planning in NSW — the New South Wales Survivor Benefits Navigator covers all three documents in detail, including registration checklists, witnessing requirements, and what happens when these documents interact with probate and estate administration after death.

See more New South Wales guides →