Recent aged care and guardianship developments have highlighted an issue that many families, financial planners and accountants may not have considered.
A growing number of aged care and NDIS providers are now requiring clear legal authority for decisions involving restrictive practices. In circumstances where a resident has lost capacity and cannot provide informed consent, a family member may no longer be able to simply consent on their behalf unless they have the appropriate legal authority to do so.
For advisors involved in succession planning, retirement planning and aged care and NDIS advice, now may be an appropriate time to review whether clients’ estate planning and incapacity planning documents remain fit for purpose.
What are Restrictive Practices
A restrictive practice is any practice or intervention that restricts a person’s rights or freedom of movement. Restrictive practices are intended to address behavioural issues and minimise harm. They are not considered medical treatment under the Guardianship Act 1987 (NSW).
Examples include seclusion, physical restraint, mechanical restraint, environmental restraint and chemical restraint as defined under the National Disability Insurance Scheme (Restrictive Practices and Behviour Support) Rules 2018
These issues frequently arise in aged care and NDIS settings where a person is experiencing dementia, cognitive impairment or behavioural symptoms that create risks for themselves or others.
NCAT has made it clear that restrictive practice decisions are separate from ordinary health care decisions, including because:
• restrictive practices are not medical treatment;
• a “person responsible” cannot consent to restrictive practices;
• if the person lacks capacity, only a guardian or enduring guardian with a restrictive practices function can provide consent; and
• restrictive practices should only be used as a last resort where less restrictive alternatives are unavailable.
As a result, many existing Enduring Guardian appointments may not provide adequate authority where decisions regarding restrictive practices become necessary.
If an Enduring Guardian appointment does not provide adequate authority for restrictive practices, families may need to apply to NCAT for guardianship orders granting a restrictive practices function.
Before NCAT grants such authority, it considers extensive evidence including:
• the views of the person concerned;
• behaviour support plans;
• the history of the behaviour;
• alternative strategies attempted;
• evidence from family and carers;
• specialist reports;
• medical evidence; and
• whether the proposed restrictive practice is genuinely necessary.
This can result in delays, increased costs and additional emotional stress at a time when families are already dealing with significant care concerns.
In HZC [2019] NSWCATGD 8, NCAT reviewed a guardianship order involving restrictive practices. The Tribunal ultimately granted guardians authority to consent to certain restrictive practices, including chemical restraint, mechanical restraint and seclusion, but only subject to strict conditions.
These conditions required the restrictive practices to be used as a last resort and in accordance with a properly developed and regularly reviewed behaviour support plan. The decision highlights the Tribunal’s focus on ensuring that restrictive practices are tightly controlled and supported by evidence-based behavioural management strategies.
More recently, in JUW [2023] NSWCATGD 3, the Tribunal again considered decision-making arrangements for a person who had lost capacity and the role of substitute decision-makers in protecting the person’s welfare and interests.
The decision highlights the importance of ensuring that incapacity planning documents are appropriately drafted and remain fit for purpose as legal and aged care requirements evolve.
Together, these decisions demonstrate the increasing scrutiny being applied to substitute decision-making arrangements and reinforce the importance of reviewing Enduring Guardian appointments on a regular basis.
An Enduring Guardian appointment made many years ago may not adequately address modern aged care consent requirements. This creates a significant risk that:
• admission to residential aged care may be delayed;
• families may be required to make urgent NCAT applications;
• providers may be unable to obtain the required consent; and
• clients may incur avoidable legal costs.
Key Takeaways
• Restrictive practices are not considered medical treatment under NSW guardianship legislation.
• A person responsible cannot consent to restrictive practices.
• Only a guardian or enduring guardian with an appropriate restrictive practices function can provide substitute consent where the person lacks capacity.
• Existing Enduring Guardian documents may not adequately address current aged care requirements.
• Financial planners and accountants should consider whether clients’ incapacity planning documents remain fit for purpose.
• Early review of estate planning documents may help avoid future NCAT applications, delays and family disputes.
How We Can Help
At MistryFallahi Lawyers & Business Advisors, we assist clients, financial planners and accountants with:
• Enduring Guardian appointments;
• Enduring Powers of Attorney;
• Wills and estate planning and business succession;
• Incapacity planning;
• Aged care planning;
• NCAT guardianship applications; and
• Reviews of existing estate planning documents.
If your clients have existing Enduring Guardian appointments that have not been reviewed for several years, it may be appropriate to consider whether those documents adequately address modern aged care and restrictive practice consent requirements.
If you would like to discuss this issue or arrange a review of your own or your clients’ incapacity planning documents, please contact our office.
