Do you need to nominate a decision maker for aged care restrictive practices?
The Aged Care Restrictive Practices Substitute Decision-Maker Act 2024 (VIC) comes into effect from 1 July 2025 after being passed in Parliament on 26 November 2024.
But what’s it all about?
What is it?
The Act provides the opportunity for a person living in an aged care residence or facility to nominate a substitute decision maker for restrictive practices in all Victorian care homes. Aged care facilities should only use restrictive practices as a last resort of care.
A restrictive practice can be:
- chemical restraint
- physical restraint
- mechanical restraint
- environmental restraint
- seclusion.
Click here for more information on the types of restrictive practices.
Source: Department of Health
The nominated decision maker or person receiving care needs to give consent for any restrictive practices in a Victorian residential care home (under the Act) if they lose capacity.
Who can the appointed decision-maker be?
The appointed decision-maker must be:
- over the age of 18
- considered an ‘eligible adult’
- is able and willing to make decisions
An authorised affidavit taker (such as a lawyer like us!) must witness the nomination. The affidavit taker must sign and date the document and confirm that the nominated person and the care recipient both have capacity to make decisions and understand their responsibility under the Act.
Note: the ‘eligible adult’ cannot be someone who provides aged care to the person making the nomination or is involved in preparing their behaviour support plan.
If no substitute decision maker is nominated, VCAT will appoint someone based on the following hierarchy:
- the spouse or domestic partner of the care recipient;
- the primary carer of the care recipient;
- the oldest child of the care recipient, followed by the other children in descending order of age if there are two or more adult children;
- the older parent of the care recipient;
- the younger parent of the care recipient;
- the oldest sibling of the care recipient, followed by the other siblings of the care recipient in descending order of age if there are two or more adult siblings.
Source: Russell Kennedy
An individual can also nominate themselves as the substitute decision maker by submitting an application to VCAT.
VCAT will appoint that person if they can see a genuine relationship between the nominated person and the aged car recipient, and they’re willing and able to make decisions.
Your Enduring Power of Attorney and/or Appointed Medical Treatment Decision Maker CANNOT be your substitute decision maker in this case.
What are the offences under the Act?
Some offences include:
- Convincing the care recipient to nominate a specific person.
- Making false or misleading statements regarding someone’s status as nominee.
Consequences of these offences include penalty units or imprisonment.
How we can help
Our team of lawyers can act as your authorised affidavit taker and sign off on the documentation. This ensures you’ve chosen the right decision maker, everything is filled out correctly and all legal requirements met.
We can also regularly review the nomination to ensure your appointed decision maker is still appropriate.
This is general advice only and has not been prepared with your situation and needs in mind. For individual and personalised advice, we highly recommend that you seek out proper professional advice from your lawyer.
