Enduring Guardian and Restrictive Practices: Why Your NSW Document May Need Replacing

An enduring guardian is someone you appoint to make personal, lifestyle and health decisions for you if you lose the capacity to make them yourself. Under the Guardianship Act 1987 (NSW), these decisions can include:

• where you live;
• what health care you receive;
• what other personal services you receive; and
• whether to consent to medical and dental treatment.

You can also give your enduring guardian other functions relating to your person, and give directions about how their functions are to be used.

Enduring guardianship only takes effect if and when you can no longer make those decisions. Until then, you remain in control.

An enduring guardian is different from an attorney under a power of attorney. An attorney makes financial and legal decisions only. Your enduring guardian makes the personal, lifestyle and health decisions. Most people need both.

A restrictive practice is any intervention that limits a person’s rights or freedom of movement. In aged care there are five recognised types:

• Chemical restraint: medication used mainly to influence behaviour rather than to treat a diagnosed illness.
• Environmental restraint: restricting access to parts of a person’s surroundings, such as a locked memory care unit.
• Mechanical restraint: using a device, such as a lap belt, to restrict movement.
• Physical restraint: using physical force to hold or move a person.
• Seclusion: confining a person alone in a room or area.

A common example is a person living with dementia who is cared for in a secure unit because of the risk of wandering. Another is medication prescribed mainly to manage agitation.

Restrictive practices are meant to be used only as a last resort, in the least restrictive form, and only to prevent harm.

Consent is required

Under Commonwealth aged care law, a provider generally needs informed consent before using a restrictive practice, except in an emergency. If the resident can’t consent, a substitute decision-maker must give that consent on their behalf.

NCAT’s approach in NSW

The Guardianship Act 1987 (NSW) does not say who can consent to restrictive practices. NCAT has filled that gap. It has consistently taken the view that a guardian can only consent if they hold a specific restrictive practices function. A general power to consent to medical or health care is not enough.

You can give your enduring guardian that function in your appointment. NCAT can also give a guardian the function by order.

The Commonwealth fallback is ending

Until now, a temporary Commonwealth “fallback” list has let aged care providers turn to a nominee, partner, carer or relative where no one else was authorised. That arrangement was originally due to end in 2024. It was extended and is now scheduled to end on 1 December 2026. After that date, families are likely to depend more heavily on whether an enduring guardian holds the right function, or on an NCAT order.

If your enduring guardianship document is silent on restrictive practices:

• Admission can be delayed. An aged care home may hesitate to accept a resident, particularly into a secure dementia unit, without clear authority to consent.
• Your guardian may be unable to act. Even a trusted family member may not be able to give consent when a decision is needed.
• An NCAT application may be needed. Your family may have to ask NCAT to make a guardianship order, or to review your appointment and add the function.

NCAT’s Guardianship Division can:

• review an existing enduring guardian appointment and confirm it with varied functions, including a restrictive practices function; or
• make a guardianship order appointing a guardian with that function.

An NCAT application is a formal legal process. The Tribunal considers evidence about the person’s capacity and needs before making a decision. It is not a rubber stamp, and it can take time. For families already managing a health crisis or a move into care, this adds stress, delay and cost that could have been avoided.

If your current enduring guardianship document doesn’t include a restrictive practices function, our practice is to prepare a new Appointment of Enduring Guardian rather than amend the existing one. We then formally revoke the old appointment. A single, current document gives your enduring guardian clear authority. It also avoids uncertainty about which document, or which parts of which document, apply.

Revoking the old appointment properly matters. Under the Guardianship Act 1987 (NSW), revocation requires a written instrument in the prescribed form, signed while you have capacity and witnessed by an eligible witness, such as a lawyer. Written notice of the revocation must also be given to the enduring guardian you previously appointed.

A statement in your new appointment that earlier appointments are revoked is not, on its own, treated as revoking them. That is why we complete a formal revocation alongside the new appointment.

The key point is timing. You can only make a new appointment and revoke the old one while you still have capacity. Once capacity is lost, the only path is usually through NCAT.

When we prepare a new appointment, we talk with you about:

• The restrictive practices function. This is an express function allowing your enduring guardian to consent to restrictive practices.
• Directions and limits. For example, that the least restrictive option is always tried first, or that your doctor is consulted before consent is given.
• Who to appoint. Whether to appoint one enduring guardian or more, and whether to name a substitute in case your first choice can’t act.
• Your wishes and values. For example, your views on end-of-life care or on medical treatment that conflicts with your beliefs.
• Your other documents. Your Will, Power of Attorney and enduring guardianship appointment should work together, so we review them as a set.

It is also important to talk with the person you appoint. Your enduring guardian must accept the appointment in writing and should understand your wishes before they ever need to act on them.

At Stephen Wawn & Associates, we regularly review and prepare enduring guardianship documents as part of our estate planning work. We can review your existing appointment, prepare a new one with a restrictive practices function, and handle the revocation of your old document. We can also act for families who need to apply to NCAT.

To check whether your enduring guardian can consent to restrictive practices, book a free consultation.