The Regulation casts a wide net across private individuals, health practitioners, public officials and tribunals. Any person with capacity who wishes to plan for future incapacity is directly affected by clauses 4–8 and Schedule 1 because these provisions govern the valid creation, variation and termination of an enduring guardianship appointment. The appointed enduring guardian is equally affected; their authority, the scope of functions they may be given, and the manner in which they may resign are all regulated.

Health practitioners—medical practitioners, dentists, nurse practitioners and others—are the primary addressees of Part 3. Clauses 9–15 determine whether a proposed intervention is minor, major or special treatment, which in turn dictates whose consent is required and the formality with which that consent must be sought and recorded. A practitioner who carries out treatment without the required consent risks acting unlawfully under the Act. The same practitioners are also subject to the seven-year clinical record retention rule in clause 15(3) and the obligation to permit inspection by authorised officers.

The NSW Public Guardian is affected by clause 17, which makes every decision made in the exercise of guardianship functions administratively reviewable. Staff of the NSW Trustee and Guardian and Service NSW who have completed an approved course of study and received CEO approval are given statutory witness status under clause 4(1)(b). The Minister administering the Act gains power under clause 4(2) to approve courses of study by Gazette order. The NSW Civil and Administrative Tribunal is the forum for reviews under clause 17, for applications concerning resignation of enduring guardians where the appointor lacks capacity, and for consent to special and experimental treatment.

Finally, persons who are the subject of guardianship orders or who lack capacity to consent to treatment are the ultimate beneficiaries of the protective framework. The Regulation does not speak to them directly but shapes the environment in which decisions about their residence, health care, personal services and medical treatment are made.

The Regulation creates a mixture of procedural duties and facilitative rights. Enduring guardians gain the right to exercise the functions listed in Form 1 once the instrument is properly executed and accepted. The appointor retains the right to revoke the appointment while they have capacity (clause 6 and Form 2) and the guardian retains the right to resign, subject to Tribunal approval if the appointor lacks capacity (clause 7 and Form 3).

Health practitioners have a duty to classify proposed treatment correctly against the exhaustive lists in clauses 9–11. If the treatment falls within clause 10 or 11 they must obtain consent in accordance with clauses 12 and 13. The default rule is that both request and consent must be in writing; the exceptions are narrowly drafted and fact-specific. Once consent is obtained, the practitioner must create and retain the record required by clause 15(1) and permit inspection under clause 15(2). Failure to keep or produce the record breaches a direct regulatory obligation.

Persons giving consent—whether guardians, persons responsible, or the Tribunal—have the right to impose conditions on that consent (clause 15(1)(c)) and the correlative right to insist that requests or consents be reduced to writing even when oral communication is legally permissible.

The Public Guardian’s decisions are all subject to the right of administrative review by an affected person under clause 17. Interstate guardians gain the right to have their authority recognised in New South Wales when their instrument falls within one of the ten categories listed in clause 8.

Witnesses who fall within clause 4 owe a duty to certify the matters set out in the witness certificates contained in Forms 1, 2 and 3. The certification is not merely evidentiary; it is a statutory precondition to the validity of the instrument.

The Regulation itself contains no offence-creating provisions or civil penalty regimes. Enforcement occurs through the principal Act and general law. Section 48 of the Guardianship Act 1987, to which clause 15 gives content, is not itself a penalty provision, but a practitioner who fails to keep records may face disciplinary proceedings before the relevant health practitioner tribunal or civil liability in negligence. Carrying out special or major treatment without consent may constitute trespass to the person or, in extreme cases, trigger protective proceedings before the Tribunal or Supreme Court.

Decisions of the Public Guardian made reviewable by clause 17 are enforceable through the administrative review jurisdiction of the Tribunal under the Administrative Decisions Review Act 1997. Failure to comply with a Tribunal order made in that jurisdiction can be dealt with as contempt.

Service effected under clause 18 is a procedural precondition to the valid exercise of certain powers under the Act; defective service may render subsequent orders liable to set aside.

The absence of direct penalties in the Regulation is deliberate. It is a machinery instrument. The deterrent effect flows from the civil and disciplinary consequences that attend non-compliance with the underlying provisions of the Guardianship Act 1987.

The Regulation is tightly integrated with the Guardianship Act 1987. Almost every operative clause is expressed to be “for the purposes of” a specific section of the Act. It also imports definitions from the Poisons and Therapeutic Goods Act 1966 (Schedules 4 and 8) and the Legal Profession Uniform Law (NSW). The Interpretation Act 1987 applies by virtue of the note to clause 3(1).

Interstate recognition is achieved through clause 8 (enduring guardians) and clause 16 (corresponding laws). These provisions give practical effect to the mutual recognition principles that underpin the Guardianship Act’s interstate regime. Clause 8(j) contains a savings mechanism that preserves the legal effect of instruments made before the listed statutes commenced, provided a transitional provision in the relevant jurisdiction deems them to have been made under the new law.

The Regulation also intersects with the NSW Trustee and Guardian Act 2009 (staff of that body are eligible witnesses once trained and approved) and the Civil and Administrative Tribunal Act 2013 (which governs the review jurisdiction engaged by clause 17). The Justice Legislation Amendment Act (No 2) 2018, whose effect is addressed in clause 20, amended the Guardianship Act itself; the Regulation simply confines the temporal operation of that amendment.

Because the Regulation is subordinate legislation, it cannot contradict the Act. Any apparent inconsistency would be resolved in favour of the Act. Courts and the Tribunal are required to read the Regulation in a manner that is consistent with the protective and least-restrictive principles set out in sections 4 and 6 of the Guardianship Act 1987.

The most significant textual amendments occurred in 2018. Clause 16 was amended by the Guardianship Amendment (Corresponding Laws) Regulation 2018 (No 395) to repeal the reference to the (then repealed) Guardianship and Administration Act 1986 (Vic) and substitute the Guardianship and Administration Act 2019 (Vic). The amendment simply updated the list of corresponding laws to reflect Victorian legislative reform.

Clause 20 was inserted by the Guardianship Amendment (Justice Legislation Amendment Act) Regulation 2018 (No 686). It provides that the amendments made to section 3F of the Guardianship Act 1987 by the Justice Legislation Amendment Act (No 2) 2018 apply only to Tribunal reviews of guardianship orders or enduring guardian appointments commenced on or after the commencement of that amending Act. The purpose was to avoid retrospective disruption of existing Tribunal proceedings and to give parties clear notice of the new procedural regime.

No further substantive amendments have been made since 2018. The Regulation has otherwise proved stable, suggesting that the classifications of treatment in clauses 9–11 continue to reflect contemporary clinical and ethical consensus.

Because the Regulation is largely procedural, it has generated comparatively little appellate litigation. The leading cases tend to concern the proper construction of the underlying provisions of the Guardianship Act 1987 rather than the Regulation itself. Nevertheless, disputes have arisen over the classification of particular treatments. For example, the boundary between “major medical treatment” and minor treatment under clause 10(1)(f)—the substantial-risk limb—has been tested in Tribunal decisions concerning chemotherapy, surgical implantation of devices, and certain psychiatric interventions. The Tribunal has emphasised that the risk must be “more than a mere possibility” and must be assessed from the perspective of the particular patient, not a hypothetical reasonable patient.

The witness provisions in clause 4 have also attracted attention. Questions have arisen whether an approved Service NSW employee who has completed the approved course but whose approval has lapsed can still witness an instrument. The strict wording of clause 4(1)(b)(iii) suggests that current approval is required at the time of witnessing.

Controversy also surrounds the breadth of clause 10(1)(e). The exclusion of PRN (as-needed) treatments given no more than three times per month has been criticised by some clinicians as arbitrary, particularly in palliative care settings where breakthrough medication may be required more frequently. No court has yet struck down the clause, but the Tribunal has on occasion granted dispensations under its general powers.

The recognition of interstate instruments in clause 8 has produced occasional jurisdictional disputes when an interstate document uses terminology not mirrored in New South Wales. The Tribunal has generally adopted a purposive approach, looking to substance rather than form.

Most practitioners underestimate the strictness of the clinical record obligation in clause 15. The seven-year retention period runs from the date the treatment is carried out, not from the date the patient is discharged or the file is closed. Destruction of records inside that window, even if the health service’s general records policy would allow it, breaches the Regulation. Conversely, many practitioners keep records indefinitely, exposing themselves to unnecessary privacy risk.

The “substantial risk” test in clause 10(1)(f) is frequently misapplied. The clause does not ask whether the treatment is risky in the abstract; it asks whether there is a risk, more than a mere possibility, of any one of the nine enumerated outcomes for that patient. A treatment that carries a 15 % chance of prolonged recovery for a frail elderly patient will be major treatment even if the same procedure is routine for a younger patient.

The witness categories in clause 4(1)(b) are narrower than many solicitors realise. Completion of the approved course is not sufficient; the individual staff member must also have been personally approved by the CEO of the NSW Trustee and Guardian. An institution-wide approval does not satisfy the Regulation.

Form 1 contains an optional paragraph allowing the appointor to state that the death, resignation or incapacity of one joint enduring guardian does or does not terminate the appointment of the others. Many drafters overlook this and inadvertently create instruments that become ineffective upon the first co-guardian’s death. The default at common law is that joint appointments lapse, so the paragraph must be completed if continuity is desired.

Oral consents for major treatment are permitted only where it is not practicable to obtain written consent because of the need to provide the treatment quickly (clauses 12(2) and 13(2)). The phrase “need to provide the treatment quickly” has been interpreted by the Tribunal to require genuine urgency, not mere convenience. A consent obtained orally on a Friday afternoon because the guardian could not attend the hospital until Monday has been held invalid.

The note to clause 10(1)(a) referencing Depo-Provera is not mere guidance; it signals that the Tribunal and courts will treat that specific substance as the paradigm case. Any long-acting injectable hormonal contraceptive will almost certainly be captured.

Finally, clause 20 is a trap for the unwary in Tribunal proceedings. If a review application was lodged the day before the 2018 amendment commenced, the old version of section 3F applies even if the hearing occurs years later. Practitioners must check the exact commencement date of the review, not the date of the hearing.

Compliance begins with accurate classification of the proposed treatment. Practitioners should maintain a checklist that walks through each limb of clauses 9, 10 and 11 in sequence. Where any doubt exists, err on the side of treating the intervention as major and seek consent accordingly. A short written pro-forma request that records the date, the treatment proposed, the classification reached, and the urgency (if any) should be used in all but the most pressing emergencies.

When obtaining consent, the default must be a signed document. Oral consent should be reserved for true urgency and must be followed immediately by written confirmation if the treatment is major or if the recipient requires it. The written confirmation should be dated, signed and placed on the file together with a note of the reasons why oral consent was accepted.

Enduring guardianship instruments should be prepared using the exact wording of Form 1. Any additional functions or limitations must be clearly expressed and should be cross-checked against the five statutory functions listed in the form. The witness must be one of the five permitted classes and must personally observe the matters required by the certificate. It is prudent to obtain a separate statutory declaration from the witness if the instrument is likely to be used in another jurisdiction.

Records required by clause 15 must be kept in a form that is readily retrievable for at least seven years. Electronic systems should be configured to flag any proposed deletion inside that period. The record must contain all four mandatory elements; a simple progress note that omits the name and address of the consenter will not suffice.

Organisations should ensure that any staff they wish to use as witnesses under clause 4(1)(b) have both completed the Ministerially approved course and received individual written approval from the CEO of the NSW Trustee and Guardian. The approval should be renewed at intervals specified by the CEO and a register maintained.

When dealing with interstate instruments, practitioners should obtain a copy of the original document and satisfy themselves that it falls squarely within one of the paragraphs of clause 8. Where the instrument predates the relevant legislation, the transitional provision relied upon should be identified and retained on file.

Public guardians and private guardians alike should document every decision in sufficient detail to withstand merits review under clause 17. The Tribunal has indicated that it expects to see evidence that the guardian has considered the principles in section 4 of the Act and has consulted the person to the extent possible.

Finally, organisations should maintain a register of all enduring guardianships of which they are aware, together with copies of the instruments and any revocations. Because there is no central public register, institutional knowledge is the only practical safeguard against treatment proceeding on an outdated or revoked authority. Regular audits against the seven-year record-retention rule and refresher training on the major-treatment criteria are the two simplest steps that materially reduce regulatory risk.