Department of Health

Clinicians are frequently required to make recommendations about the complex care needs of patients in preparing for their discharge. Sometimes this results in an application about Guardianship to the Victorian Civil and Administrative Tribunal (VCAT) for the appointment of the Public Advocate, as a guardian of last resort, for an older person in hospital.

People aged 65 and over with established cognitive impairment are the subject of a significant proportion of these applications. They are often made in the context of a disagreement between the treating team and the older person about the type of accommodation or services that are required to meet the older person’s care needs on discharge.1

The guardianship process can be long with the potential to have a significant impact on an older person’s levels of stress, autonomy and sense of control over their life. It may extend the older person’s hospital admission while they wait for a hearing, for a guardian to be appointed, and for a decision to be made and effected. An extended admission can play a significant role in increasing the risk of the older person experiencing functional decline in hospital, which in turn can further limit their ability to realise their lifestyle choices.2

Before deciding to pursue an application, a model of least restrictive practice should be employed. The Guardianship and Administration Act 2019 embeds the principles of least restrictive practice into supportive and substitute decision making. The Act requires that any order made is the least restrictive of the person’s rights that is possible in the circumstances.

Least restrictive practices include working with the older person and their families or carers to avoid an unnecessary application, maximise their participation and improve care during this process. In this process it can be useful to weigh up the risks and benefits of the older person leaving hospital versus the risks and benefits facing the older person if they are to remain in hospital for a lengthy period of time. By employing a least restrictive model of practice you can work with your team to minimise the extent of any limitations on the person and encourage them to participate in all decisions that affect them.


1 Carter, B., Guardianship and the ageing population: profile of Victorian guardianship clients aged over 65 years, 2011, Melbourne: Office of the Public Advocate.

2 National Ageing Research Institute, Health Services Guardianship Liaison Officer Pilot evaluation, 2015, Melbourne: National Ageing Research Institute.

Reviewed 08 August 2022


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