Recent legislative changes in NSW mean that existing Appointment of Enduring Guardianship documents may need updating: RMB’s EDEN-MONIQUE HULL explains:
An Appointment of Enduring Guardian is a document that you put in place to appoint someone (known as a Guardian) to make important health and lifestyle decisions on your behalf in the event you are unable to make such decisions yourself due to being incapacitated (as a result of an accident, injury, illness or disability).
These legislative changes serve as a good reminder as to why an Appointment of Enduring Guardian is an important document to have in place.
The health and lifestyle decisions that a Guardian can ordinarily make on your behalf include where you live; the healthcare you receive; what other kinds of personal services you receive; and consent to medical or dental treatment on your behalf.
Under the recent legislative changes, your Appointment of Enduring Guardianship must contain special clauses if your Guardian wishes to provide consent to an aged care home using restrictive practices.
Restrictive practices are practices used in aged care to manage and treat any behavioral issues that may result from conditions such as dementia. Restrictive practices include:
1. Seclusion – where you are kept in a room or space;
2.Physical restraint – where physical force is used to restrict your movement;
3. Mechanical restraint – where a device is used to restrict your movement (e.g. bed rails);
4. Environmental restraint – where your access to certain items or activities is restricted; and
5. Chemical restraint – where medication is used to influence your behaviour.
The law recognises that these restrictive practices can greatly impact on a person’s autonomy and therefore your Guardian can only provide their consent to restrictive practices being used to influence your behaviour as a last resort to prevent you from harming yourself or someone else.
It must be in accordance with a care and support plan that outlines what behaviours are being addressed, the reasons why the restrictive practices are necessary, the non-pharmacological strategies that are in place to address the behaviour, and provision for review by an appropriate medical specialist to ensure that the practices being used remain appropriate.
If no Enduring Guardianship is in place, or they haven’t been updated with restrictive practices clauses, families can apply to the NSW Civil & Administrative Tribunal for Guardianship Orders, but this can be a stressful and time-consuming process. Better to have the orders in place well before they may be needed.
