What your Enduring Guardian can and can’t do

An Appointment of Enduring Guardian is a document which allows you to appoint a person, known as your Enduring Guardian, to make your health and welfare decisions, but only if you become incapable of making those decisions.

What can an Enduring Guardian do?

Your Enduring Guardian can make decisions about where you live, what health care or personal services you receive and can consent to medical and dental procedures. Therefore, your Enduring Guardian can make every day-to-day decision and can also make end of life decisions.

What can’t an Enduring Guardian?

Your Enduring Guardian is not able to make decisions regarding any special treatments. Special treatments can include things such as serialisation, new treatments and also restrictive practices. Restrictive practices could include seclusion or chemical restraint to address behavioural issues or minimise harm.

There are five types of restrictive practices which include:

• Seclusion – where a person is restricted to a room or a place where their exit is prevented.
• Physical restraint – where physical force is used to prevent or restrict a person’s movement.
• Mechanical restraint – where a device is used to prevent or restrict a person’s movement.
• Environmental restraint – where a person’s access to parts of their environment including items or activities is restricted.
• Chemical restraint – where medication is used to control a person’s behaviour.

Any special treatment should only be used as a last resort, where there are no other options available.

Restrictive practices could be used in the area of aged care, particularly where a resident has a cognitive incapacity and is unable to consent to any restrictive practices. In this situation, as an Enduring Guardian does not have the power to make decisions regarding special treatments, it would be necessary to make an application for a Guardianship Order through New South Wales Civil and Administrative Tribunal (known as NCAT).

When assessing the application for a Guardianship Order, NCAT will consider the following:

• The views of the person who will be affected by the restrictive practices, if they still have capacity.
• Evidence of the person’s behaviour, what matters have been considered or taken to address the behaviour and what restrictive practices are proposed.
• Evidence from the person’s family and friends.
• Medical evidence from the person’s treating physician together with their carers or disability support service providers, if applicable.
• Details of any chemical restraint, if applicable.
• Are there other options other than the use of restrictive practices.

If a Guardianship Order is made, these orders are always subject to review, as a person’s need for a restrictive practice changes. It is worth noting even once a Guardianship Order is made there still may be other approvals that are required by the care provider, if applicable, which could be the NDIS or an aged care provider.

It is also worth noting an Enduring Guardian cannot manage financial affairs or deal with property. In this instance, an Enduring Power of Attorney document would be required, where you can appoint an attorney to manage these things.

If this article raises any questions, please don’t hesitate to contact Turnbull Hill Lawyers.