Important legislative changes have taken effect across NSW, which may require you to review and update your Enduring Guardianship Document
An Appointment of Enduring Guardian is a legal document that allows you to nominate someone to act on your behalf to make health, medical and lifestyle decisions for you in the event that you lose capacity in the future. It is an important legal document that appoints someone to advocate for your health and care when you are no longer able to do so yourself.
The Enduring Guardian document allows you to choose specific functions that your guardian is able to carry out on your behalf to facilitate your medical care. Traditionally, these powers included deciding where a person lived, what health care they received and what personal services are provided, as well as specific functions relating to palliative care and end-of-life wishes.
Recent legislative changes now allow you to ask your guardian to consent to restrictive practices on your behalf. Restrictive practices are interventions that limit a person’s freedom of movement or rights, typically used to manage behaviour that poses a risk to the individual or others. These practices may include seclusion, physical restraint, mechanical restraint, environmental restrictions and chemical restraint through medication, used primarily to influence behaviour rather than to treat a medical condition. A common example of a restrictive practice is not allowing a dementia patient to leave a dedicated memory care ward or facility due to a risk of wandering.
Previously, only the guardianship division of the NSW Civil and Administrative Tribunal (NCAT) could authorise a guardian to consent to the use of restrictive practices. Recent updates to the Aged Care Regulatory framework in Australia have prompted changes to Enduring Guardianship documents in NSW, as explicit consent to restrictive practices can now be included when drafting Enduring Guardian documents.
The new changes provide important safeguards when allowing the use of restrictive practices, including a mandatory consideration of the individual’s best interests, a behavioural support plan implemented by a doctor and a review at the earliest opportunity to cease their use.
Whilst NCAT can still issue orders for restrictive practice, you should review and update your Appointment of Enduring Guardian to allow an easier transition to care if required. Legislative changes mean aged care facilities may deny placement if the Enduring Guardian document does not already include a consent clause for restrictive practices, due to potential delays in issuing NCAT orders.
To review or update your Enduring Guardian document, call 4651 4800 to book an appointment with our friendly and knowledgeable Estate Planning Team.
