From 1 September 2026, the prescribed form for appointing an Enduring Guardian was updated to provide an express function to cover restrictive practices. This is particularly relevant in aged care, where restrictive practices may sometimes be considered to protect a resident or another person from harm. If a person can no longer provide informed consent to a restrictive practice themselves, the person making that decision on their behalf needs to have the appropriate legal authority.
In NSW, an Enduring Guardian may be able to make this decision. However, their appointment needs to specifically give them the necessary authority. If you have made an Enduring Guardianship in the past, this does not mean your existing document is invalid or that it automatically needs to be replaced. It does mean that now is a good time to check whether your guardians have the specific restrictive practice function.
What changed from 1 September 2026?
Following a review by the NSW Government, the Guardianship Regulation 2016 (NSW) was repealed and replaced by the Guardianship Regulation 2026 (NSW). One of the changes identified by this review was an update to the prescribed form for appointing an Enduring Guardian. The new form provides an option for the appointment to cover the use of restrictive practices.
This is important because an Enduring Guardian only has the functions they have been legally given. The NSW change also needs to be considered alongside the Commonwealth aged care framework. The Aged Care Act 2024 (Cth) and Aged Care Rules 2025 (Cth) commenced on 1 November 2025.
The Commonwealth framework contains requirements governing the use of restrictive practices in aged care. This includes requirements about who can provide informed consent when a person is no longer able to provide that consent themselves. Together, these developments make it important for people who already have an Enduring Guardianship to understand what functions are included in their existing appointment.
What are restrictive practices in aged care?
A restrictive practice is a practice or intervention that restricts a person’s rights or freedom of movement. While the term can sound confronting, restrictive practices can arise in everyday aged care situations where there are concerns about a person’s safety or the safety of others.
For example, a resident may be at significant risk of falls. They may become disoriented and attempt to leave a safe area. A person living with dementia or cognitive decline may also experience behaviours that create a risk of harm to themselves or another person. Depending on how and why a particular measure is used, restrictive practices can include:
● Mechanical restraint
This involves equipment or a device being used in a way that restricts a person’s movement. In some circumstances, this may include particular equipment used around a bed or chair where its purpose or effect is to prevent the person from falling but also restricts their freedom of movement.
● Environmental restraint
This involves limiting a person’s access to a particular area, item or activity. For example, it may involve restricting access to an area where there is a significant risk of the person becoming lost or injured.
● Chemical restraint
This involves medication being used for the purpose of influencing a person’s behaviour rather than treating a diagnosed medical condition.
● Physical restraint
This involves the use of physical force to restrict a person’s movement.
● Seclusion
This involves a person being kept alone in a particular room or space where they are not able to leave.
Importantly, not every safety measure used in aged care is a restrictive practice. For example, equipment used to support a person’s mobility, positioning or falls prevention will not necessarily be a restrictive practice simply because it is used around their bed or chair. Whether something is considered a restrictive practice will depend on the nature, purpose and circumstances of its use. Restrictive practices are tightly regulated because they involve balancing a person’s safety, dignity, independence and freedom of movement.
Can an aged care facility simply use a restrictive practice without consent?
No. The Commonwealth aged care framework contains strict safeguards around the use of restrictive practices. Generally, a restrictive practice must only be used as a method of last resort to prevent harm. Alternative strategies need to be considered first. The restrictive practice must also be necessary and proportionate to the risk. It must be the least restrictive option available, and it must only be used for the shortest period necessary.
There are also requirements relating to informed consent, behaviour support planning, monitoring and review. If a person has capacity to provide informed consent, the decision remains theirs. If they do not have capacity, informed consent generally needs to be provided by an appropriately authorised Restrictive Practices Substitute Decision Maker, often referred to as an RPSDM.
What does this have to do with my Enduring Guardianship?
Quite a lot. An Enduring Guardian in NSW is someone you choose to make certain personal, health and lifestyle decisions for you if you lose the capacity to make those decisions yourself. Depending on the functions included in the appointment, your Enduring Guardian may have authority to make decisions about:
● Where you live
● The health care you receive
● Medical and dental treatment
● The personal services you receive
Restrictive practices can also be included as a function of an Enduring Guardian. However, being appointed as someone’s Enduring Guardian does not automatically mean that person has authority to consent to restrictive practices. The NSW Government makes clear that an Enduring Guardian cannot consent to restrictive practices unless they are specifically authorised to do so in the Appointment of Enduring Guardian document. This is why the wording and functions contained in your existing Enduring Guardianship matter.
Why is it important to review an Enduring Guardianship you already have?
You may have already taken the important step of appointing an Enduring Guardian because you wanted someone you know and trust to make decisions about your care if you could no longer make those decisions yourself. However, if your existing Enduring Guardianship does not give that person specific authority in relation to restrictive practices, they may not be legally authorised to make this particular decision for you.
Consider a practical example.
You appointed your daughter as your Enduring Guardian because she knows you well, understands your wishes and is the person you trust to make decisions about your care. Later, you move into residential aged care and lose the capacity to provide informed consent to a restrictive practice that is being considered as part of your care. You and your family may naturally assume that your daughter can make the decision because she is your Enduring Guardian. However, if restrictive practices are not within the functions given to her under the appointment, she may not have the necessary authority for that particular decision.
This can have important consequences. Depending on the circumstances, an application may need to be made to the Guardianship Division of the New South Wales Civil and Administrative Tribunal under the NSW guardianship framework to address the necessary decision-making authority. The Commonwealth aged care laws also contain rules for identifying a restrictive practices substitute decision maker in certain circumstances where there is no appropriately authorised person or body and an application for an appointment has been made, but there is a significant delay in determining it. This means that the person legally recognised to make a decision about restrictive practices may not necessarily be the person you originally chose and trusted to act as your Enduring Guardian.
This is why reviewing your Enduring Guardianship while you still have capacity is important. You have already taken steps to plan ahead and choose who you trust to make decisions for you. Reviewing your appointment can help ensure that the authority given to that person continues to reflect your wishes and the decisions they may need to make under the current legal framework.
Is my existing Enduring Guardianship still valid?
Yes. An existing Enduring Guardianship is not automatically invalid because it was made before 1 September 2026. This is an important distinction.
Your Enduring Guardian may continue to have valid authority to make decisions about your accommodation, health care, medical treatment, personal services and any other functions included in the appointment. The question is whether your document also gives your Enduring Guardian the appropriate authority in relation to restrictive practices. The sensible first step is to have your existing document reviewed.
Do I need to update my Enduring Guardianship?
Not necessarily. A review can determine what functions your Enduring Guardian currently has. It can also identify whether restrictive practices are appropriately addressed and whether any changes should be considered based on your circumstances and wishes.
It may be worthwhile having your Enduring Guardianship reviewed by a solicitor if:
● You made your Enduring Guardianship before 1 September 2026
● Your document does not refer to restrictive practices
● You are unsure what authority your Enduring Guardian has
● You are considering residential aged care for yourself or a family member
● Your health, care needs or personal circumstances have changed
● You want to make sure your estate planning documents continue to reflect your wishes.
Importantly, you need to have the required decision-making capacity to appoint or change your Enduring Guardian. For this reason, it is better to review these arrangements before an urgent health or aged care situation arises.
Have an Enduring Guardianship? Now is a good time to have it reviewed
Good estate planning is not simply about having documents in place. It is about making sure those documents continue to reflect your wishes and give the people you trust the appropriate authority to act for you. If you already have an Enduring Guardianship in NSW, you do not need to assume that it is invalid or that it automatically needs to be replaced. Instead, there is one important question worth asking. Does the person I have chosen have the authority I want them to have if they ever need to make decisions about my care?
At Southern Waters Legal, our experienced Wills and Estates lawyers can review your existing Enduring Guardianship, explain the functions your chosen guardian currently has and advise whether your arrangements remain appropriate under the current NSW guardianship and aged care framework. If you already have an Enduring Guardianship and are unsure whether it covers restrictive practices, contact Southern Waters Legal to arrange an Enduring Guardianship review.
Reviewing your arrangements now can help ensure that if important decisions need to be made in the future, the person you chose and trust has the appropriate authority to act.
This article provides general information only and does not constitute legal advice. Guardianship, aged care and restrictive practices laws can involve different requirements depending on individual circumstances. You should obtain legal advice specific to your circumstances.
