Does your guardian appointment inadvertently exclude you from some aged care facilities?

Recent changes to the NSW Enduring Guardianship regulations have added a new power for your guardian which is somewhat controversial and may not sit well with many people. But if you don’t agree to this new power being added the operator of your preferred aged care facility may not be prepared to accept your application.

When you apply for accommodation in an aged-care facility the operator of the retirement village or nursing home asks whether you have appointed an Enduring Guardian.

The operator needs to know if there is someone who you have authorised and empowered to consent on your behalf to the actions of the operator if you subsequently loose mental capacity.

In NSW the standard Appointment of Enduring Guardian form entitles your guardian to make decisions about:

• where you live

• what health care you receive

• what other kinds of personal services you receive, and

• whether and what medical and or dental treatment you have

From 1 September 2026, the prescribed NSW Enduring Guardianship form expressly allows an enduring guardian to consent to, or withhold consent to, the use of so-called ‘restrictive practices

Restrictive practices can include:

• using physical force to restrict your movement

• restricting your access to areas, activities or personal items (even now most care facilities have secure entry that requires staff-controlled access or password or keypad access)

• using medication such as sedatives simply to control your behaviour rather than to treat a diagnosed or medical condition

• keeping you separate from others, or

• using restraints or other equipment to limit your movements.

These practices sound draconian, even medieval, but following the Royal Commission into Aged Care Quality and Safety our regulators accept that such practices may be necessary to prevent you from hurting yourself or someone else if you’re suffering from extreme emotional distress that you can’t control.

Aged care facility operators may believe that they need the power to use these restrictive practices in extreme situations.  They must carefully regulate the use of such restrictive practices.

They can only obtain consent from your guardian, who you have authorised in writing to give such consent, or from the NSW Civil and Administrative Tribunal (NCAT) in cases where the guardian has not been appropriately authorised but the operator still needs to be able to use such practices.

This highlights the difficulty.  You may be horrified to think that you are consenting to people doing these things to you, but at the same time if you don’t consent the aged care facility operator may either refuse your application for a residence in the facility or make an application to NCAT at the time anyway. Such applications result in delay and possibly extra cost. 

Of course just because your guardian has the power to consent to the use of these practices to control you doesn’t mean they necessarily will or must in any given situation.

Before NCAT can make an order it must consider the following matters which presumably your own guardian should take into account before consenting:

• any current behaviour support plan which includes a history of the objectionable behaviour

• an assessment of the impact of your behaviour on both you and others

• any other steps taken or being considered to address your behaviour

• precisely what restrictive practices are proposed and their possible affects, and

• input from doctors, particularly specialists, and your regular carers.

Note though that it’s probably fair to say that if the operator really believes that the restrictive practices are warranted they will put considerable pressure on your guardian to agree.

What to do?  Initially work out if you’re prepared to give the consent or just take your chances that it’s never going to be needed.

If you decide you want to consent then contact us to arrange a new Appointment of Enduring Guardian containing the appropriate new wording. Existing guardianship documents which were signed using earlier forms will almost certainly not contain the required authority.

A restrictive practices authority now needs to be in your Appointment of Enduring Guardian document if you want to ensure that the person you trust can make all necessary care decisions on your behalf and avoid the negative issues of not giving the authority to your guardian.