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 Victorian Department of Health (DH VIC), the Office of the Public Advocate (OPA), VCAT and researchers from the National Ageing Research Institute (NARI). 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 importance of having supportive decision making in place for people who require support to make decisions, as well as the types of supportive and substitute decision makers in Victoria.
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 and , 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.
Supported and substitute decision-making in Victoria and the law
Decision-supporters are usually legally appointed to make decisions with or on behalf of another person about financial, lifestyle and/or medical issues. There are many types recognised in 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
All Australian hospitals are being accredited under The Australian Commission on Safety and Quality in Healthcare’s (ACSQHC) National Safety and Quality Health Service (NSQHS) Standards. Each of the standards relate to optimising clinical care and better outcomes for all patients. This topic highlights the need to approach the clinical issues older people face in hospital in a holistic and person-centred way in order to identify and respond to multiple modifiable risk factors throughout their stay. Doing this will improve our systems, clinical care and ultimately the outcomes for older people. The topic of Guardianship highlights the need to partner with consumers (Standard 2) in their own care to identify: the capacity of a patient to make decisions about their own care or a substitute decision maker if a patient does not have the capacity to make decisions for themselves (Standard 2, Action 2.05).
Reviewed 08 August 2022