If you are appointing an enduring guardian in New South Wales, you can now decide whether to give them express authority to consent to, or withhold consent to, the use of a restrictive practice on your behalf. Available from 1 September 2026 through the prescribed form under the Guardianship Regulation 2026 (NSW), this option helps address a practical gap for families, carers, and disability service providers.
What is a restrictive practice?
The prescribed form describes a restrictive practice as a practice or intervention that has the effect of restricting a person’s rights or freedom of movement.
In the National Disability Insurance Scheme (NDIS) context, regulated restrictive practices fall into five recognised categories:
- seclusion
- chemical restraint
- mechanical restraint
- physical restraint, and
- environmental restraint.
These may include confining a person to a room, using medication to influence behaviour, or restricting access to parts of a person’s own home.
Because restrictive practices intrude on a person’s basic freedoms, their use is subject to strict safeguards. These include, in many cases, consent from the person or someone lawfully authorised to consent on their behalf.
Why the change matters
For NDIS participants, the Commonwealth framework defers to state and territory law on the question of consent for restrictive practices. A regulated restrictive practice may only be used where its use complies with the applicable state or territory authorisation and consent requirements, if any.
In other words, the Commonwealth scheme does not itself determine who is authorised to provide consent under NSW law.
This could create a practical difficulty where a person lost capacity and no one held clear authority to consent specifically to restrictive practices. The new prescribed form provides a clearer way to address that issue in advance. However, where no appropriate authority has been conferred before the person loses capacity, it may still be necessary to seek an appropriate guardianship order from the New South Wales Civil and Administrative Tribunal.
What has changed?
The Guardianship Regulation 2026 (NSW) replaced the former 2016 Regulation and commenced generally on 1 September 2026, with one schedule commencing on 5 November 2026.
Alongside the familiar functions such as deciding where the person lives, what healthcare and personal services they receive, and consenting to medical and dental treatment, the prescribed form now expressly lists restrictive practices. An appointor can authorise their enduring guardian to consent to, or withhold consent to, a practice or intervention that has the effect of restricting the appointor’s rights or freedom of movement.
This operates through the existing structure of the Guardianship Act 1987 (NSW). Section 6E already allows an appointment to confer any other function relating to the appointor’s person that is specified in the instrument and allows the appointor to limit or exclude any function.
Critically, consent given by an enduring guardian in exercising a conferred function takes effect as if it had been given by the appointor while they had full legal capacity.
That deeming rule supports the legal effectiveness of an enduring guardian’s consent where the relevant function has been conferred. However, the separate NDIS behaviour support, authorisation and other safeguard requirements continue to apply.
Who is affected?
People planning ahead
Anyone making an enduring guardianship appointment can now decide, in advance, whether their chosen guardian should hold authority over restrictive practices, potentially avoiding the need to seek that authority through a later tribunal application.
Enduring guardians
People appointed as enduring guardians under new or updated documents may be asked to take on this function, which carries real weight. Consenting to, or withholding consent to, restraint or seclusion is a serious decision affecting a person’s liberty.
Families and carers
The change provides a clearer way to identify who may consent where a loved one has lost capacity.
Disability and aged care providers
Providers who require a valid consent before using a regulated restrictive practice may have clearer evidence of who is authorised to provide that consent.
Key points to keep in mind
Expressly conferred
The function must be expressly conferred, as the authority is not automatic. An appointor who wants their enduring guardian to hold this authority must include the function in the appointment.
Limited or directed
The appointment can place limits on the function or set directions governing how it is exercised. This is a useful tool where an appointor wants to permit some practices but not others, or to impose conditions.
Giving an enduring guardian this function does not amount to consent in advance to a particular restrictive practice. It gives the guardian authority to consider a proposal and decide whether to consent to, or withhold consent to, its use if the issue arises.
Operates on incapacity
An enduring guardian’s authority operates when the appointor can no longer make the relevant decisions themselves.
Safeguards still apply
The NSW consent mechanism sits alongside, not instead of, the NDIS behaviour support and authorisation requirements. Consent is one part of a broader framework that also includes behaviour support, authorisation, reporting, and least-restrictive-practice requirements. Separate Commonwealth requirements also govern the use of restrictive practices in residential aged care.
What does this mean for you?
Existing Appointment of Enduring Guardian documents remain valid, but may not expressly address restrictive practices. Anyone who wants their enduring guardian to hold this authority should consider seeking advice about whether their existing document already confers an appropriate function or whether it should be updated.
If you are preparing an Appointment of Enduring Guardian, or are unsure whether an existing appointment gives your enduring guardian appropriate authority over restrictive practices, our Wills & Estates team can help you review your options and ensure your arrangements continue to reflect your wishes.
We provide practical, considered advice to individuals and families across Australia on enduring guardianship, powers of attorney, Wills, and the use of testamentary trusts. Our lawyers can assist in a way that best suits you, whether that’s face-to-face, over the phone, by video conference, or by email, helping you plan with confidence.
