New developments in NSW guardianship law: what you need to know about restraints and “restrictive practices”

If you’ve set up (or are thinking about setting up) an Appointment of Enduring Guardian in New South Wales, there’s been an important shift in how the law deals with restraints, more formally known as “restrictive practices.”

These changes are already affecting families, aged care providers and legal practitioners, so here’s a straightforward guide to what’s going on.

First things first: what are “restrictive practices”?

“Restrictive practices” is the umbrella term used for interventions that limit a person’s freedom of movement or decision‑making.

They include things like:

  • Physical restraint (e.g. holding someone down)
  • Mechanical restraint (e.g. bed rails or belts)
  • Chemical restraint (medication used to control behaviour, not treat illness)
  • Seclusion (being locked in a room)
  • Environmental restraint (restricting access to parts of a home or facility)

These measures are typically used in aged care or disability settings where a person’s behaviour creates a risk to themselves or others.

What’s changed?

1. Guardians now need explicit authority to consent to restraints

One of the biggest changes is this:

It’s no longer assumed that a guardian can consent to restrictive practices.

Instead, a guardian (including an enduring guardian) must have a specific “restrictive practices” function or authority before they can give that consent.

This applies in two key situations:

  • Guardianship Orders made by NCAT – the Tribunal must expressly include the function; or
  • Enduring Guardian appointments – the document itself must clearly authorise the guardian to consent.

If that authority isn’t there, the guardian may be legally unable to approve restraints, even in urgent care situations.

2. Older documents may no longer be enough

Many existing Enduring Guardian documents don’t mention restrictive practices at all.

That’s now a problem.

Aged care providers increasingly require clear written authority before they will use (or sometimes even approve admission involving) any form of restraint.

Without it, families often have to apply to NCAT for a guardianship order, adding stress, delay and cost at exactly the wrong time.

3. The shift is driven by stronger oversight of restraints

These changes didn’t happen in a vacuum. They follow:

  • Findings of the Royal Commission into Aged Care Quality and Safety, and
  • Broader reforms emphasising human rights, autonomy, and accountability.

The key message is that restraints:

  • Must only be used as a last resort
  • Must be necessary to prevent harm
  • Must be supported by proper care planning and review

4. NCAT’s role has evolved

The NSW Civil and Administrative Tribunal (NCAT) now plays a more structured role.

When making a guardianship order, NCAT can:

  • Appoint a guardian, and
  • Specifically decide whether that guardian can make decisions about restrictive practices.

This ensures closer scrutiny before anyone is given the power to authorise what are, in effect, restraints on a person’s liberty.

Why this matters in practice

These changes have real‑world consequences.

For clients

If you already have an Enduring Guardian:

  • It may not be enough anymore
  • Your appointed person might not be able to act when needed

For families

Without proper authority:

  • You may need to apply to NCAT at short notice
  • Care decisions may be delayed
  • Facilities may refuse or limit services

Practical takeaways

If you only take one thing from this update, make it this:

Enduring Guardian appointments should now include a carefully drafted restrictive practices clause.

More broadly:

  • Review older documents (especially pre‑2024)
  • Ensure any guardianship application considers whether a restrictive practices function is needed
  • Advise clients about the increasing importance of these powers

A final word

The direction of reform is clear: stronger safeguards, clearer authority, and better protection of vulnerable people’s rights.

At the same time, the law now expects greater precision in how guardianship powers are granted.

If your arrangements haven’t been reviewed recently, now is a good time to revisit them, before a crisis situation arises.

If you’d like guidance on updating an Enduring Guardian appointment or applying for guardianship with the appropriate powers, our team is always happy to help. Please call 9525 8688 or click here to contact us.