Betty saw her lawyer about her estate planning documents in good time before retiring.
Betty’s wishes were to live at home for as long as possible into her retirement years. However, she understood that she may need to be moved into an aged care home in the event of loss of capacity, especially as she lived alone and did not wish to live with her family.
In Short
- Proactive Safeguards: Appointing an Enduring Guardian before losing capacity ensures your medical, housing, and lifestyle decisions remain with someone you trust.
- Aged Care Mandates: Under current Aged Care Act Rules, residential care providers require appointed guardians to hold explicit authority to approve restrictive practices.
- Strict Supervision: Any implementation of chemical, mechanical, or environmental restraint requires a documented behaviour support plan overseen by the Aged Care Quality and Safety Commission.
- Avoiding NCAT Escalation: If guardianship documents fail to address restrictive interventions, families may face lengthy, stressful applications through the NSW Civil and Administrative Tribunal.
Part of the advice sought by Betty related to Enduring Guardianship documents (“EG”), which only come into play when a person loses capacity. Betty was advised that EGs relate to decision making on her behalf by her appointed guardian/s about her health care, residence, lifestyle choices, and permission for restrictive practices to be imposed on her as needed.
Most aged care facilities require EGs to address the issue of restrictive practices that the aged care home can impose on residents. These are measures of last resort for the safety of the resident in their care and others.
Restrictive practices include: environmental restraints such as being confined to the facility or part of the facility; chemical restraints such as the use of medication to suppress or calm a person’s behaviour; mechanical restraints such as bed rails to subdue a person’s movement; physical restraints such as forcefully being held down to avoid harm to self and others; and seclusion such as being isolated in a part of the facility.
Where restrictive practices are implemented on a resident, the facility provider must retain a behaviour support plan for that resident. Oversight of restrictive practices is managed through the Aged Care Quality and Safety Commission.
Where a person has lost capacity when applying for residential aged care placement, the provider will insist on there being an appointed guardian for that person. Where there is no EG in place, an appointment can be sought by anyone through the NSW Civil and Administrative Tribunal (“NCAT”).
Under the new Aged Care Act Rules implemented in 2026, aged care providers require appointed EGs to have permission to allow for the implementation of restrictive practices.
Where EGs fail to address the issue of restrictive practices, anyone can apply to NCAT for an order permitting the implementation of such practices.
Betty understood that current legislation had effectively made some EG decisions for her.