Appointment of Enduring Guardian documents and restrictive practices
07 May 2025
In NSW, the appointment of an enduring guardian is typically an important aspect of a person’s estate planning process.
An Appointment of Enduring Guardian document (AEG) allows a person to appoint one or more trusted persons to make decisions on their behalf during any periods where they lack capacity to manage their own affairs.
A person who is appointed (and who has validly accepted their appointment) as an enduring guardian has the authority and power to make health and lifestyle decisions on behalf of another person (the Principal).
Typically, an enduring guardian is authorised to exercise the following functions:
- to decide where the Principal lives
- to decide what health care the Principal receives
- to decide what other kinds of personal services the Principal receives, and
- to consent to the carrying out of medical or dental treatment on the Principal (in accordance with the Guardianship Act 1987 (NSW)).
A Principal can also authorise their enduring guardian to exercise additional functions and can direct that the enduring guardian acts in a certain manner. Common examples of this include decisions based on personal beliefs and religious faith (for example, not wishing to receive blood transfusions) and end-of-life decisions.
More recently, the term ‘restrictive practice’ has come into the spotlight in the context of AEG documents.
What are restrictive practices?
Restrictive practices refer to any intervention that restricts the rights or freedom of movement of an individual. These practices are commonly used in aged care settings.
There are five main types of restrictive practices:
- Chemical restraint: The use of medication or a chemical substance for the primary purpose of influencing a care recipient’s behaviour.
- Environmental restraint: The restriction of a person’s free access to all parts of their environment (including items and activities).
- Mechanical restraint: The use of a device to prevent, restrict or subdue a care recipient’s movement.
- Physical restraint: The use of physical force to prevent, restrict or subdue movement of a care recipient’s body, or part of a care recipient’s body.
- Seclusion: The solitary confinement of a care recipient in a room or a physical space at any hour of the day or night.
The relevant legislation
The Aged Care Act 1997 (Cth) (1997 Act) and related legislative instruments provide multiple pathways for persons to make decisions on behalf of another in the context of restrictive practices. These substitute decisions makers are called ‘restrictive practices substitute decision makers’ or RPSDMs.
However, there has been some uncertainty regarding enduring guardians being able to consent to restrictive practices, particularly in the context of aged care facilities and nursing homes, with some nursing home providers allegedly not accepting individuals unless they have an AEG that permits the enduring guardian to consent to restrictive practices.
The Royal Commission into Aged Care found that the 1997 Act is no longer fit for purpose as it does not adequately provide for people accessing services. Accordingly, the Aged Care Act 2024 (Cth) (2024 Act) will replace the 1997 Act on and from 1 July 2025.
The new rights-based 2024 Act places a stronger focus on the rights and needs of older people within the aged care system and introduces stronger protections and clearer guidelines for the use of restrictive practices.
In NSW, enduring guardians appointed under an AEG pursuant to the Guardianship Act 1987 (NSW) must have an express function of being able to consent to restrictive practices.
The typical (default) functions afforded to enduring guardians listed above do not include restrictive practices as they are not ‘medical treatment’, meaning the AEG must expressly provide that the enduring guardian has the function of consenting to restrictive practices.
Sparke Helmore frequently assists clients with their estate planning documents, including AEGs. If you have any queries or require legal assistance with your existing AEG or you would like to have a new one prepared, please don’t hesitate to contact us.
More information about restrictive practices and the new 2024 Act can be found at the following Government Health Department links:
