An enduring guardian serves as a designated decision-maker for an individual who becomes incapacitated due to illness, injury, or disability and is unable to make personal or health care choices. This guardian, appointed through a legal document known as an enduring guardianship, holds the authority to make critical decisions concerning the appointor’s health care, living arrangements, and personal matters. These decisions encompass medical treatments, accommodation, and daily care, all aimed at the appointor’s best interests while adhering to their outlined instructions or preferences.

The Australian Royal Commission into Aged Care Quality and Safety, established in 2018, responded to mounting concerns regarding aged care services’ quality and safety in Australia. It aimed to investigate and report on the care provided to older Australians in residential aged care facilities and those receiving home care services. The Commission, chaired by Commissioner Richard Tracey and Commissioner Lynelle Briggs, held public hearings and consultations nationwide, leading to significant findings and recommendations for reform.

One key aspect addressed by the Commission was the use of restrictive practices in aged care settings. These practices, such as seclusion, physical or mechanical restraints, and chemical interventions, aim to manage behaviour but can impinge on individuals’ rights and freedoms. The Commission recommended increased oversight and regulation of these practices, emphasising the need for informed consent and adherence.

In NSW, the Guardianship Division of NCAT has dealt with applications seeking guardianship for individuals subjected to restrictive practices, including chemical restraint and physical constraints like bed rails. Each case requires careful consideration of the individual’s circumstances to determine if the practice constitutes a restraint. For instance, in one case, the use of bed rails was deemed necessary to prevent harm to a person with quadriplegia, indicating a balance between safety and autonomy.

Currently, NSW lacks specific legislation addressing restrictive practices and it is arguable that most current enduring guardians are silent on these issues. However, at Adams & Partners Lawyers, we can draft Enduring Guardians that deal with these changes to ensure that you are protected in any situation dealing with a lack of capacity.

Written by Cameron Spanner,

Contemplation of Marriage and Divorce - Adams & Partners Lawyers

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