Guardianship Regulation 2026 (NSW): Changes practitioners should be aware of

The Guardianship Regulation 2026 (NSW) commenced on 1 September 2026, replacing its 2016 predecessor. While much of the existing framework remains unchanged, the introduction of a fifth standard function brings an important new consideration for practitioners to discuss with clients when advising on guardianship and future decision-making. 

Relevant documents

• Guardianship Regulation 2026 (NSW) 

• Guardianship Act 1987 (NSW) 

• Regulatory Impact Statement, Guardianship Regulation 2026 (DCJ) 

• Guardianship Regulation 2016 (NSW) 

Disclaimer: The information provided in the articles in this section are of a general nature and should not be construed as specific advice or relied upon in lieu of appropriate professional advice. Whilst LEAP Legal Software uses commercially reasonable efforts to ensure the information in these articles is up to date at the time of publication, LEAP does not warrant their accuracy, currency or completeness and excludes all loss or damage howsoever arising (including through negligence) in connection with the information contained in these articles. 

Quick takeaways

• New prescribed forms – Notably, Form 1 Appointment of Enduring Guardian, now includes a new standard function allowing an enduring guardian to consent to, or withhold consent to, the use of restrictive practices. More broadly, Forms 1, 2 (revocation) and 3 (resignation), have been remade to reflect updated witness wording and other editorial and formatting amendments aligned with current drafting conventions. 

• Eligible witnesses: Service NSW employees have been removed from prescribed categories of eligible witnesses, as their general service functions do not involve specialist knowledge or experience in guardianship matters.  

• Major medical treatment: The classification of major medical treatment has been amended, with treatment involving a general anaesthetic now expressly classified as major medical treatment, while HIV testing has been removed from the prescribed categories of major medical treatment. 

• Existing appointments: Pursuant to section 20 of the Guardianship Regulation 2026, enduring guardian appointments that had effect under the Guardianship Regulation 2016 immediately before its repeal continue to have effect under the 2026 Regulation. 

Why the Regulation was remade 

Under the Subordinate Legislation Act 1989 (NSW), statutory rules are generally subject to staged automatic repeal after five years, although repeal may be postponed in accordance with the Act. The Guardianship Regulation 2016 was due for repeal on 1 September 2026, prompting the NSW Government to review and remake the Regulation. 

 While much of the existing regulatory framework has been retained, the new Regulation introduces targeted changes relevant to guardianship practice.  

The substantive changes 

1.     Restrictive Practices

Schedule 1, Form 1 of the Guardianship Regulation 2026 introduces a fifth standard function that may be conferred on an enduring guardian. Paragraph (e) authorises the enduring guardian: 

“to consent to, or withhold consent to, the use of a restrictive practice, being a practice or intervention that has the effect of restricting my rights or freedom of movement”. 

The addition responds to an identified issue concerning consent to restrictive practices in the aged care and disability sectors. The Regulatory Impact Statement explains that Commonwealth aged care services and the National Disability Insurance Scheme require the consent of a guardian to the use of a restrictive practice where the person concerned is unable to provide their own consent. A restrictive practice is described in this context as a practice or intervention that restricts a person’s rights or freedom of movement, with a locked door preventing a person from freely leaving a place given as an example. 

The structure of the new Form 1 is also significant. The restrictive practices function is included alongside the existing standard functions relating to accommodation, healthcare, medical and dental treatment, and personal services. Its inclusion means that practitioners preparing a new appointment should expressly consider with the principal whether the enduring guardian is to be given authority to consent to, or withhold consent to, restrictive practices, and ensure the instrument reflects those instructions. 

The Regulation does not separately define or prescribe particular categories of restrictive practice. The concept therefore needs to be understood in the context in which the authority may be exercised, including the applicable Commonwealth aged care or NDIS restrictive-practices framework where relevant. 

2. Eligible Witnesses

The Guardianship Regulation 2026 removes Service NSW employees from the prescribed categories of persons eligible to witness an appointment of an enduring guardian. The Regulatory Impact Statement explains that the change is intended to ensure that eligible witnesses have relevant knowledge and experience to perform the witnessing function. The prescribed forms have been updated accordingly, with Service NSW employees no longer identified among the witness categories in Forms 1, 2 and 3.  

3. Major Medical Treatment

Section 10 of the Guardianship Regulation 2026 refines the classification of major medical treatment under Part 5 of the Guardianship Act 1987. It clarifies that treatment involving a general anaesthetic is always considered major medical treatment, removing the potential ambiguity under the 2016 Regulation, which grouped general anaesthetic with other forms of sedation subject to specified exceptions. 

Conversely, HIV testing, previously expressly classified as major medical treatment, has been removed from section 10. The Department explained that its former classification created an unnecessary barrier to testing and timely healthcare. 

Section 11 otherwise retains the classification of specified dental procedures, including dental treatment involving general anaesthetic or simple sedation, as major dental treatment. 

4. Other Amendments

The 2026 Regulation also makes a number of consequential and administrative updates. Sections 8 and 16 update references to corresponding interstate and New Zealand legislation to ensure their continued accuracy and facilitate interjurisdictional recognition of guardians and financial managers.

Section 17 permits the Public Guardian to delegate functions to persons engaged to provide services on its behalf and section 18 preserves NCAT’s review jurisdiction in respect of decisions made by the Public Guardian as guardian.  

What this means for your practice 

Enduring guardian appointments that had effect immediately before the repeal of the Guardianship Regulation 2016 continue to have effect under the Guardianship Regulation 2026. From 1 September 2026, however, practitioners should ensure that all new appointments, revocations and resignations are prepared using the new prescribed Forms 1, 2 and 3 under the 2026 Regulation. The forms incorporate the substantive amendments described above, together with editorial and formatting updates aligned with current drafting conventions. 

The introduction of the express function concerning restrictive practices also creates an important review point for existing appointments that are silent on that authority. Where restrictive practices may become relevant, particularly in aged care or NDIS settings, practitioners should consider whether the existing appointment confers the authority required in the relevant setting and, if not, whether a new appointment should be made while the principal retains capacity. Witnessing practices should similarly be reviewed, particularly where firms have previously relied upon Service NSW employees as prescribed witnesses for clients or appointees in regional or remote locations.

Particular care is warranted where an appointment was prepared under the 2016 Regulation but an enduring guardian's acceptance remained outstanding at 1 September 2026: before arranging execution, practitioners should confirm that the acceptance is witnessed by a person who is an eligible witness under the current requirements. 

Practical steps

• Update precedents and workflows: Replace the 2016 Forms 1, 2 and 3 with the new prescribed forms under the 2026 Regulation. 

• Take and document specific instructions: Discuss paragraph (e) of Form 1 expressly with clients and record whether the restrictive practices function is to be conferred, limited or excluded, together with the instructions underpinning that decision. 

• Review witnessing arrangements: Update witnessing procedures to reflect the removal of Service NSW employees as prescribed witnesses, particularly where the firm has previously relied on Service NSW to facilitate execution for regional, remote or otherwise less accessible clients. 

• Identify existing appointments for review: Consider whether existing estate planning clients may benefit from a review of their enduring guardianship arrangements, particularly where residential aged care, supported accommodation or the future use of restrictive practices is reasonably foreseeable. 

• Update drafts: Ensure any drafts that are awaiting to be signed are redrafted using the current forms.

How LEAP helps 

Following the commencement of the 2026 Regulations, the relevant forms were updated to align with the new requirements. LEAP Estates regularly reviews and updates its legal forms and precedents to reflect changes in legislation and regulations. This extends to LEAP Estates’ EstatePlanner app, which enables practitioners to efficiently generate enduring guardianship documents that reflect the prescribed forms and requirements under the Guardianship Regulation 2026, helping practitioners remain current with legislative change while streamlining the document preparation process.