A guardian is a person legally appointed by the Victorian Civil and Administrative Tribunal (VCAT) to make specific lifestyle decisions for another person who, due to disability (including dementia), lacks decision-making capacity for a decision that needs to be made. In cases where there is no-one known to the person who is able and willing to take on this role, the Public Advocate may be appointed as the guardian of last resort. Before this occurs, VCAT must be satisfied that the needs of the person could not be met by other means less restrictive of the person’s freedom of decision and action.
This section was developed in collaboration between a range of expert clinicians from Victorian health services, and representatives from the Department of Health and Human Services, the Office of the Public Advocate, the Victorian Civil and Administrative Tribunal and researchers from the National Ageing Research Institute. It explores the concept of least restrictive practice in the context of discharge planning for older people in hospital who have complex needs. It also outlines the current legal context of substitute decision making in Victoria, the role that each organisation plays in the process of applying for a guardian of last resort, and the types of orders that can be made.
Discharge planning requires comprehensive assessment of each patient’s unique values, preferences, strengths and risks. This is particularly important when the treating team expects an older person’s care requirements will be quite substantial after discharge. In some cases the team may consider it is not possible or in the patient’s best interest to discharge them to the accommodation they were in prior to admission. This can be very distressing for the older person and their family, and they may disagree, especially in cases where (the team believes) a person’s cognitive impairment is impacting on their ability to understand the consequences of their decision. These situations can also be very challenging for staff involved in the person’s care, and it is essential that each staff member plays a key role in identifying, trialling and documenting least restrictive alternatives to the appointment of a guardian (if feasible).
This resource is intended as general guidance only. Give due consideration to whether or not the advice should be followed in each individual situation. It is not a substitute for individual health services seeking their own independent legal advice. In addition to following policy and procedures specific to your health service, it is important to familiarise yourself with the information outlined on the websites of the Office of the Public Advocate and VCAT, consider the recommended actions and discuss them with colleagues and managers.
Complex decision making in hospital and the importance of least restrictive practice
A model of least restrictive practice should be employed before deciding to apply for a guardianship order for a patient with complex post-discharge care needs.
Substitute decision making in Victoria and the law
Substitute decision makers are usually legally appointed to make decisions on behalf of another person about financial, lifestyle and/or medical issues. There are many types recognised in the State of Victoria.
Least restrictive practice
Least restrictive practice means applying a model of care that enhances an older person’s autonomy, and respects their rights, individual worth, dignity and privacy.
Exploring decision making capacity in the context of lifestyle decisions
Deciding to formally assess a person’s capacity to make informed decisions should always be specific to the decision/s at hand and start from a presumption of capacity.
Application processes and the roles of the organisations involved
Before making a guardianship application, it is essential to understand the roles of each organisation involved in the process and the terminology used.
Making an application and supplying supporting information for the appointment of a guardian of last resort
A guardianship application should only be made when all less restrictive alternatives have been trialled. Application forms are available from VCAT.
A sample case study: Mrs Brown
Case study of the treating team’s decision to apply for a guardian of last resort for Mrs Brown.
More information – guardianship and least restrictive practice
Education and information resources available on guardianship and least restrictive practice
Reviewed 10 November 2021