By Brighid Lee and Sam Maher
The aged care system has changed significantly with the introduction of the Aged Care Act 2024 (Cth) together with the Aged Care Rules 2025.
One important change concerns the use of restrictive practices in residential aged care.
Restrictive practices are measures that restrict a person’s rights or freedom of movement.
Under the new rules, restrictive practices must only be used as a last resort, where necessary to prevent harm, in the least restrictive way and for the shortest time necessary. Informed consent is also required, subject to limited exceptions such as an emergency.
Restrictive practices can include:
- Chemical restraint
- Physical restraint
- Mechanical restraint
- Environmental restraint
- Seclusion
What does this mean for an Enduring Guardian?
An Appointment of Enduring Guardian (AOEG) is a legal document that allows a person to appoint someone they trust to make certain health, lifestyle and accommodation decisions on their behalf if they lose the capacity to make those decisions themselves.
An enduring guardian’s authority is not unlimited. It only extends to the functions given to them under the appointment.
Depending on the appointment, an enduring guardian may be authorised to:
- Consent to medical or dental treatment on your behalf;
- Decide where you live, including moving into residential aged care;
- Decide what health, welfare and support services you receive; and
- Decide who you have contact with.
Importantly, an enduring guardian does not necessarily have the authority to consent to restrictive practices simply because they have been appointed as an enduring guardian.
Under the new aged care rules, if a person lacks capacity to consent to a restrictive practice, informed consent must be given by the person who is legally authorised to act as the restrictive practices substitute decision-maker for that particular purpose.
It is important to consider whether your existing AOEG gives your guardian the appropriate authority to make these decisions.
Why should you review your estate planning?
If you have an existing AOEG and particularly if you or a family member is living in or considering residential aged care, it is worth checking that the document gives your chosen guardian the appropriate authority.
If an existing AOEG does not give the guardian the appropriate restrictive practices function, it may be necessary to update your AOEG to include it.
Alternatively, you may apply to NSW Civil and Administrative Tribunal (NCAT) to have the appointment reviewed. NCAT can, where appropriate, add a restrictive practices function to an existing enduring guardianship appointment.
Scenario
It’s just after 2am and Mary, 84, is out of bed again, moving down the corridor of her residential aged care facility, disoriented, trying to find her room. She has fallen twice this month.
Tonight, staff are worried she will fall again. The facility wants to put measures in place to monitor Mary when she gets out of bed and reduce the risk of another fall or reduce the risk of her disturbing other people. Depending on the nature and purpose of the measure, this may involve restrictive practice and may require informed consent.
But Mary has advanced dementia and cannot give informed consent herself.
Sophie, Mary’s daughter, has held an AOEG for years. Mary made the appointment while she was still well, naming Sophie to make health and lifestyle decisions if she ever lost capacity
That time has come.
But when the facility reviews the document, it discovers that there is uncertainty about whether Sophie has the authority required to provide informed consent to a restrictive practice.
Result
In this scenario, Mary does not have legal capacity to update her AOEG so that it covers restrictive practices.
This means that the only way for this document to be amended is for an application to be made to the NSW Civil and Administrative Tribunal (NCAT).
NCAT will consider what Sophie and any other interested person such as Mary’s other family members or the aged care facility have to say about Mary’s care. NCAT might decide that any one or a combination of those people should make decisions about restrictive practices for Mary, even though Mary wanted Sophie to be the one to make her decisions for her.
This scenario is for illustrative purposes only but highlights why it is important to review your AOEG documents before they are needed.
Having an Enduring Guardian is critical for your future care and wellbeing. Making sure that your document gives your chosen guardian the appropriate authorities to ensure all of your future care needs such as restrictive practices is just as important.
If you have any questions or concerns regarding your estate planning and particularly your AOEG, please don’t hesitate to reach out.