If you are currently residing in or may in the future enter residential aged care in Victoria, a new legislation that commenced on 1 July 2025 means if you were to lose decision making capacity, your enduring powers of attorney appointments may not be enough.
The Aged Care Restrictive Practices Substitute Decision-maker Act 2024 (Vic) (the Restrictive Practices Act) that commenced recently, requires a separate, formal appointment for decisions relating to the use of restrictive practices in residential aged care. In the absence of this appointment, none of the following individuals automatically have authority to provide informed consent to the use of restrictive practices on your behalf:

• your enduring power of attorney for personal matters under the Powers of Attorney Act 2014 (Vic); or
• your medical treatment decision maker under the Medical Treatment Planning and Decisions Act 2016 (Vic); or
• your guardian or administrator under the Guardianship and Administration Act 2019 (Vic).

A restrictive practice is any practice or intervention that restricts the rights or freedom of movement of a person . It applies only to persons who reside in residential aged care and is seen as a last resort to prevent harm to the person themselves (resident) or to others.
There are five categories of restrictive practices -

1. Chemical restraint – medication administered primarily to influence behaviour rather than for a therapeutic or clinical need
2. Environmental restraint - restricting access to certain areas of the facility, including through egress controls
3. Mechanical restraint - devices that limit a resident's movement
4. Physical restraint - the use of physical force to restrict movement
5. Seclusion - involuntary confinement of a resident alone in a room or area

All adults are presumed to have decision-making capacity unless there is evidence to the contrary.
Under the Restrictive Practices Act, a person has decision-making capacity if they can understand the information relevant to the decision and the effect of the decision, retain that information to the extent necessary to make the decision, use or weigh that information as part of the decision-making process and communicate the decision in some way.

To authorise someone to consent to restrictive practices on your behalf, you (the principal) must complete a separate formal nomination under the Restrictive Practices Act. You may nominate the same person already appointed as your enduring power of attorney or medical treatment decision maker and there is no requirement that such nomination is of a different person.
For a nomination to be valid, the following must be satisfied :
- You are an adult with decision-making capacity at the time of making the nomination;
- You understand the nature and effect of the nomination; and
- the nominated person consents to the nomination.
The nomination must be recorded or translated in English, include full details of both you and the nominated person, and be signed in the presence of an authorised witness such as a lawyer or other person authorised to take affidavits in Victoria.

Where no nomination has been made or the nominated person is unable or unwilling to act, the residential aged care provider must determine who may act as a temporary substitute decision-maker according to the following hierarchy :

1. spouse or domestic partner
2. primary carer
3. oldest adult child (followed by other adult children in descending age)
4. older parent (followed by the younger parent)
5. oldest adult sibling (followed by other adult siblings in descending age)

To act in this role, the person must be an adult, have a close and continuing relationship with the resident, and be reasonably available, willing and able to make the decision.
This arrangement is strictly temporary. Once a consent decision is made, the temporary decision-maker's role ceases. The provider must reassess the hierarchy afresh each time a new consent decision is required.
The following persons are not eligible to act as temporary substitute decision-maker:

• an employee or agent of the aged care facility;
• a person involved in preparing the resident’s behaviour support plan;
• a person subject to a family violence intervention order in which the resident is the affected family member; or
• a person with a conviction (other than a spent conviction) for an offence against the resident.
  

If no nominated or eligible substitute decision-maker exists, VCAT may act as a decision-maker of last resort . In such a situation, VCAT may make orders which may include time-limits or conditions for the use of restrictive practices that prioritise the wishes and values of the resident wherever possible.

If you are currently in residential aged care, or anticipate entering aged care in the near future, we recommend you review your incapacity planning documents as a matter of priority. In addition to your enduring powers of attorney and medical treatment decision maker appointment, you should also consider completing a nomination under the Restrictive Practices Act.
Making this nomination while you have capacity ensures that a person you trust (who may already be your existing attorney or decision maker) has authority to act if restrictive practices are ever proposed in your care.
There is further information available on the website of the Victorian Department of Health and contact information for submitting any questions regarding the appointments under this legislation.
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*Disclaimer: The information provided in this article is general in nature and is not intended to be legal advice. For advice relating to your specific circumstances, please contact an estate planning lawyer.