Could Your Clients' Enduring Guardian Documents Be Missing a Vital Power?
Recent changes to the New South Wales Enduring Guardianship framework highlight the importance of ensuring your client's estate planning documents remain up to date.
From 1 September 2026, the prescribed New South Wales Enduring Guardianship form was updated to expressly allow an enduring guardian to consent to, or withhold consent to, the use of restrictive practices. Many existing Enduring Guardianship documents were signed using earlier forms and may not contain an equivalent authority.
This reform arises from the Royal Commission into Aged Care Quality and Safety.
A restrictive practices authority now needs to be in your client's Enduring Guardian document to ensure the person they trust can make all necessary care decisions on their behalf.
If you have clients with older Enduring Guardianship documents, particularly clients in or approaching aged care, it may be worth suggesting that their documents be reviewed to confirm whether they expressly deal with restrictive practices.
What are restrictive practices?
Restrictive practices are measures used to limit or restrict a person’s freedom of movement, communication, or decision-making and are generally used to prevent harm to the individual or to others.
In aged care, restrictive practices can include:
Seclusion – keeping a person separate from others
Chemical restraint – using medication to control behaviour (rather than to treat a diagnosed or medical condition)
Environmental restraint – restricting access to areas, activities, or personal items
Mechanical restraint – using equipment or devices to limit movement
Physical restraint – using physical force to restrict movement
Why does this matter?
Following the Royal Commission, aged care providers must carefully regulate the use of restrictive practices and may only obtain consent from someone who has been expressly authorised in writing either:
as a 'Restrictive Practices Decision Maker' in an Enduring Guardian document; or
by NCAT.
Before the change, the accepted view was that an Enduring Guardian had the authority to consent to restrictive practices. The statutory change makes it clear that an additional paragraph now needs to be added to an Enduring Guardian document.
What should you do?
We recommend that you encourage your clients to review their Enduring Guardianship document if it does not expressly address restrictive practices.
A simple review now may help ensure that your client's chosen decision-maker has the authority needed to make important care and lifestyle decisions on their behalf when it matters most.
If you would like to discuss whether this issue may be relevant for your clients or would like us to review an Enduring Guardianship document, Suzie Boulous, Phoebe Hine or Sophia Alegria Ferreira would be pleased to assist.
The material in this article was correct at the time of publication and has been prepared for information purposes only. It should not be taken to be specific advice or be used in decision-making. All readers are advised to undertake their own research or to seek professional advice to keep abreast of any reforms and developments in the law. Brown Wright Stein Lawyers excludes all liability relating to relying on the information and ideas contained in this article.
contact
Suzie Boulous
Partner
E sjb@bwslawyers.com.au
P 02 9394 1083
Phoebe Hine
Senior Associate
E prh@bwslawyers.com.au
P 02 9394 1038