From 1 September 2026, enduring guardianship in NSW comes with a new power, listed at paragraph (e) of the form. It lets your guardian answer for you when an aged care home wants to use a restrictive practice, such as keeping you on a locked dementia wing. Appointments signed before that date remain valid. Most of them are silent on restrictive practices, and that is the one power aged care homes now ask about.
The change came with the Guardianship Regulation 2026, made under the Guardianship Act 1987 to replace the 2016 Regulation. The Department of Communities and Justice put the remake out for consultation as a set of minor updates. For a family whose father is about to move into a secure dementia unit, nothing about this one is minor.
Anyone making a new appointment of enduring guardian now has to decide what to do with paragraph (e). For older appointments, the question is whether the document still does its job, and that can only be fixed while the person who signed it still has capacity.
Key takeaways
- Existing appointments still have effect under section 20 of the 2026 Regulation. Nothing was cancelled.
- Paragraph (e) is optional, and it can be limited with written directions.
- 1 December 2026: the Commonwealth fallback that lets aged care providers turn to family for restrictive practices consent is due to end.
- Service NSW staff can no longer witness the form.
- Once capacity is lost, only NCAT can fill the gap.
What is enduring guardianship?
Enduring guardianship lets you name the person who will make health and lifestyle decisions for you once you can’t. The appointment is made on a prescribed form under the Guardianship Act 1987 (NSW).
The form’s standard functions cover accommodation and health decisions, including consent to medical and dental treatment. Paragraph (e) adds restrictive practices to that list. You can write limits against any of them.
Your guardian has no say while you can still decide for yourself. With dementia, capacity usually goes one decision at a time. A guardian may be choosing your accommodation while you still run your own daily routine.
For money and property, you need an enduring power of attorney, made under the Powers of Attorney Act 2003. Power of attorney and enduring guardianship are separate documents with separate witnessing rules. Many people give both roles to one person.
What changed on 1 September 2026?
Paragraph (e) is the change most families will notice from 1 September 2026. The rest of the new Regulation is largely housekeeping, apart from the witness rules.
Change | What it means for you |
New Form 1 includes paragraph (e) | Your guardian can be given express authority to consent to, or withhold consent to, a restrictive practice |
Service NSW staff removed as eligible witnesses | Appointments, revocations and resignations need a witness from the remaining categories |
General anaesthetic always classed as major medical treatment | Procedures under general anaesthetic follow the stricter consent rules for major treatment |
HIV testing removed from major medical treatment | Testing no longer needs the higher level of consent |
Forms 1, 2 and 3 remade | The old enduring guardianship form NSW families may have in a drawer should not be used for a new appointment, revocation or resignation |
One transitional point catches people. If an appointment was prepared before 1 September but a guardian had not yet signed their acceptance, the acceptance now has to be witnessed under the current rules, so a Service NSW counter is no longer an option for it (LEAP summary of the Regulation).
Should you give your enduring guardian the restrictive practices power?
For anyone who may need residential aged care, our recommendation is to include paragraph (e) with written directions attached. Without directions, you are authorising someone to agree to locked doors or sedation on your behalf with no guidance from you about when.
Restrictive practices are interventions that limit a person’s rights or freedom of movement. On a dementia wing, that usually means the keypad lock on the exit door, or medication given to settle agitation. Commonwealth law treats both as a last resort and requires informed consent. Once you can’t give it, the consent comes from whoever holds paragraph (e).
Don’t tick the box without thinking about it. We usually suggest a direction that the least restrictive option be tried first, and another requiring your guardian to speak with your treating doctor before agreeing to any medication used to manage behaviour. Some clients add a direction about regular review.
Others leave the power out entirely, usually because they would rather a tribunal weigh that decision than a family member. That is a legitimate choice. The consequence is that an aged care provider may need an NCAT-appointed guardian before it can lawfully use a restrictive practice.
The low-cost route gets a form signed. A post office pack or a Local Court registrar can get you there, but registrars cannot give legal advice, and no counter service will talk you through what paragraph (e) should say.
Is my existing appointment of enduring guardian still valid?
Yes. Section 20 of the Guardianship Regulation 2026 keeps appointments made under the 2016 Regulation in effect. Nothing was cancelled on 1 September.
Valid is not the same as enough. An appointment on the old form says nothing about restrictive practices. Before the change, plenty of practitioners read the health care function as covering restraint. Providers have stopped relying on that reading, and the Law Society of NSW has raised the problem with the Commonwealth, noting that providers want restrictive practices named in the instrument itself.
While the document is out, look at what has changed since you signed. Marriage after signing revokes the appointment unless you married the person you appointed. Your guardian may have died or lost capacity in the meantime. Without an alternative on the form, nobody can act under it.
We look at your power of attorney and will in the same review. Most people signed all three documents at one appointment.
How do you update or revoke enduring guardianship in NSW?
There is no way to add paragraph (e) to an old appointment. You sign a fresh one on the current Form 1. To revoke enduring guardianship in NSW, you sign Form 2 in front of an eligible witness. Tell the guardian being replaced in writing.
We prepare the new appointment and the revocation together. Signed on the same day, they leave no question later about which document applies.
Look again at who you chose. An old appointment may still name a spouse you have since separated from.
Why does 1 December 2026 matter for families entering aged care?
For families, 1 December 2026 matters more than 1 September. The Commonwealth fallback that lets aged care providers turn to family for restrictive practices consent is due to end on that date.
The Aged Care Rules 2025 require a provider to get informed consent before using a restrictive practice. For a resident without capacity, a restrictive practices substitute decision-maker gives it. A temporary hierarchy in the Rules, known as the authorisation table, has let providers identify that person from among family members and carers. The Queensland Law Society’s Proctor notes the table is due to cease on 1 December 2026, along with a related immunity for providers. From then, a NSW provider will look for an enduring guardian holding paragraph (e), or a guardian appointed by NCAT with that function.
Most families find out about the gap on admission day. The facility hands over a form, and that is the first anyone has heard of restrictive practices. Admission is the worst possible time to be sorting out legal authority. Your parent may no longer have the capacity to sign a new appointment, and the room is being held for a limited time.
The Commonwealth has pushed this deadline back once before. Plan on it holding this time.
Can a spouse consent to restrictive practices without an appointment?
Not once the authorisation table ends. The Guardianship Act NSW makes a spouse or de facto partner in a close and continuing relationship the “person responsible”, able to consent to most medical and dental treatment without any document, but that authority does not extend to restrictive practices.
Being the spouse gets you further than people expect, which is why this gets missed. A husband or wife signs consent forms at the hospital for years without anyone asking for paperwork, so the assumption that the same authority covers a locked unit is a reasonable one. It stops short of that. After 1 December, a spouse with no appointment will be in the same position as any other relative: unable to give the consent the provider needs and waiting on NCAT.
For couples, the practical answer is an appointment each, ideally naming each other and an alternative.
Who can witness enduring guardianship in NSW now?
Since 1 September 2026, an appointment of enduring guardian must be witnessed by an eligible witness from these categories:
- an Australian legal practitioner (solicitor or barrister)
- a registrar of the Local Court
- an approved employee of NSW Trustee and Guardian or the Office of the Public Guardian
- certain overseas-qualified lawyers prescribed by the Regulation
Service NSW employees are no longer on the list. The witness also cannot be someone you are appointing as guardian.
Dropping Service NSW was the right call. The witness is there to check that the person understands what they are signing and is signing voluntarily, and the Department’s stated reason for the change was that witnesses need relevant knowledge and experience to make that judgement. With paragraph (e) on the form, there is more to understand than there used to be.
Each guardian must also sign an acceptance. Until they do, the appointment has no effect.
What happens if a parent has already lost capacity?
The gap can only be fixed with a document while the person still has capacity. After that, the route is an NCAT guardianship application to the Guardianship Division of the NSW Civil and Administrative Tribunal, asking it to appoint a guardian with a restrictive practices function.
Family members can apply, and so can the aged care provider. The Tribunal works from evidence, including medical reports on capacity, and it will want to know why informal arrangements are not enough. After a hearing, it may appoint a relative, or the Public Guardian where no suitable private guardian is available. Orders are time-limited and reviewed.
NCAT is not a rubber stamp. An application takes evidence and time, and the family does not choose the outcome.
Should you name an alternative enduring guardian?
Yes, particularly when your guardian is a spouse of a similar age. The person appointed at 75 may not be able to act at 85.
Your alternative has no authority while the first guardian can still act. Once that changes, an adult child named as alternative steps in without anyone going to NCAT.
Joint enduring guardians must agree on every decision. For siblings who don’t get on, name one as guardian and the other as alternative.
Reviewing your appointment before aged care
Bring the documents you already have. We check them against the current enduring guardianship rules in NSW and talk through paragraph (e) with you, including any directions you want attached. Tell us when you book if a parent is moving into care before 1 December. Those matters go first.
Book a confidential consultation with Tamara Al Hashimi, Director and Principal Family Lawyer at Hillcrest Family Legal.
Frequently asked questions
When you lose capacity to make the decision in question, signing the document hands nothing over.
Any adult you trust who signs the acceptance. The Act excludes anyone involved, in a professional or administrative capacity, in providing you with medical treatment or care, or accommodation services for a fee. Staff at the aged care home you may move into cannot be appointed, however well you know them.
No. Registration is optional. You can register the appointment in the General Register of Deeds with NSW Land Registry Services for safekeeping, but most people keep the original somewhere secure and give copies to the guardian and their GP.
Not for anything new. Appointments, revocations and resignations signed from 1 September 2026 should be on the forms in the 2026 Regulation.
Yes, by written notice on the prescribed form while you have capacity. After that, only with NCAT's approval. A spouse the same age as you may want to step down in a few years. By then, that takes a Tribunal application.
