An “Appointment of Enduring Guardian” or “Enduring Guardianship” is an important document which appoints someone to make health and wellbeing decisions if the time comes when you cannot make these decisions yourself.
Recent developments in restrictive practices means your current Appointment of Enduring Guardian (if you have made one) may not be up to date.
We are finding consistent issues, particularly with aged care providers, in the application of new restrictive practice legislation. If your Appointment of Enduring Guardian does not specifically refer to the guardian’s ability to order restrictive practices, then health care providers are requiring guardians to get an order from the Guardianship Tribunal consenting to restrictive practices.
The challenges involved in this, along with feedback from clients in this situation, have led us to recommend that all Appointments of Enduring Guardian be updated to include this specific power. This is with a view of making life easier for your loved ones if you suffer from dementia or some other condition that requires restrictive practices to be considered.
This article will look at the broad role of an enduring guardian and why inclusion of a restrictive practices consent clause is now a critical element that needs to be carefully considered.
What is an enduring guardian and when do I need one?
An enduring guardian is the person you legally appoint to make decisions about your health, wellbeing and lifestyle should you lose your capacity to make these decisions. You can appoint an enduring guardian as long as you are over 18 and have the capacity to make this choice on your own.
An Appointment of Enduring Guardian is often prepared at the same time that you do a Will and/or a Power of Attorney, and comes into effect when you’re unable to make decisions due to illness, injury, or disability. The guardian’s responsibilities include deciding where you live, the healthcare and medical treatments you receive, and other lifestyle matters. They cannot make financial decisions on your behalf or handle legal matters, but they play a crucial role in safeguarding your wellbeing and dignity.
An Appointment of Enduring Guardian is not just important for old people. It’s an essential part of your estate planning. Even in the most forward of situations, having this document in place assists your loved ones in looking after you. It is, however, particularly important to consider who’s the right person/people to be making these decisions for you if you have a blended family or if family members may not see eye to eye on all matters.
What has changed in Enduring Guardianship?
Recent changes in regulations relating to restrictive practices now means where you cannot provide informed consent, for restrictive practices to be applied, your enduring guardian needs to have a specific restrictive practices function (under your Appointment of Enduring Guardian) to give written consent to any restrictive practices. This ensures the use of such practices is carefully considered and only implemented as a last resort. The guardian’s role is crucial in balancing the need for safety with your rights and dignity.
What is a Restrictive Practice?
Restrictive practices are interventions that limit a person’s rights or freedom of movement, often used to address behaviour issues and minimise harm. These practices include seclusion, physical restraint, mechanical restraint, environmental restraint, and chemical restraint. They are not considered medical treatments under the Guardianship Act 1987 (NSW) and are used only when necessary to prevent harm to the person or others. In reality, this could be something as simple as isolating you in a room in the event of a particular outburst, through to physical restraint to stop you from harming yourself.
What are the implications if I do not update my Enduring Guardianship document?
Updating an Enduring Guardianship document to include consent for restrictive practices is important as it provides a legal framework for making these critical decisions. In New South Wales, an Appointment of Enduring Guardian that isn’t updated with a restrictive practices function can result in:
- Inadequate Decision-Making: Without explicit consent for restrictive practices, the guardian may struggle to make informed decisions or give consent during critical moments. This lack of clarity can lead to delays in implementing necessary interventions, potentially endangering your safety or intensifying challenging behaviours. If your guardian is required to go off to the Tribunal to seek an order to be able to give consent, this will take a considerable amount of time and effort.
- Legal and Ethical Risks: Failing to update the guardian’s authority can result in legal and ethical complications. If restrictive practices are used without proper consent, it may violate your rights, leading to legal disputes or investigations. Moreover, your guardian may face personal liability if their decisions are challenged or deemed inappropriate. Practically, we are finding that most healthcare providers will refuse to allow any form of restrictive practice to occur without the guardian having the proper authority to give consent; this too has its own legal and ethical complications.
A guardian with the ability to consent to restrictive practices is better placed to make timely, well-informed choices based on medical evidence, input from family, friends and professionals. This will mean your guardian has the authority to make the final call on the least restrictive options while safeguarding your rights.
As stated above, we feel a restrictive practices consent clause is now a critical element that needs to be expressly included in Enduring Guardianship arrangements.
If your Enduring Guardianship, or any other estate planning documents need updating, please contact our Estate Planning Team on (02) 49272 2900.
Further information can be found at: NCAT Factsheet Guardianship Division: restrictive practices and guardianship
