How to nominate a restrictive practices substitute decision-maker in aged care (Tier 1)

Under Tier 1 of the hierarchy of decision-makers an aged care resident who has decision-making capacity can nominate an eligible adult to be their Restrictive Practices Substitute Decision-maker while they reside in residential aged care or before they go into residential aged care.

A Nominee who is reasonably available, willing and able may be asked to provide consent to the use of restrictive practices in relation to an aged care resident receiving funded aged care services in a residential aged care home.

The nominee must agree to be the substitute decision-maker, and the nomination should be completed in advance and in writing, with an appropriate witness that can take an affidavit.

Creating and revoking nominations

An adult who has decision-making capacity can nominate an eligible adult to be their Restrictive Practices Substitute Decision-maker while they reside in residential aged care or before they go into residential aged care.

Nomination and revocation forms

An aged care resident or prospective resident can complete a nomination form to nominate a Restrictive Practices Substitute Decision-maker.

Aged care residents can also complete a revocation form to revoke a nominated Restrictive Practices Substitute Decision-maker nomiee:

While these template forms are not mandatory to use, they are recommended to ensure that nominations are made correctly and will be enduring.

The nomination is an enduring appointment unless:

• the appointment is revoked
• the nominee is no longer reasonably available, willing and able to act as a decision-maker
• there is a VCAT appointee in place.

Who can be nominated?

An aged care resident can nominate almost anybody to be their Restrictive Practices Substitute Decision-maker, with some exceptions.

The Nominee must be someone over the age of 18, have capacity to make restrictive practice decisions, and be available, willing and able to make decisions.

Who cannot be nominated?

The following people cannot act as a nominated Restrictive Practices Substitute Decision-maker:

• if they are an agent of, or employed by the aged care resident’s approved aged care provider; or
• if they have been or may be involved with the preparation or implementation of the aged care resident’s Behavioural Support Plan as an agent or employee of the aged care provider (excluding people consulted in their capacity as supporters, or as a Restrictive Practices Substitute Decision-maker); or
• if they are the subject of a current family violence intervention order against the aged care resident; or
• if they have been found guilty of committing a crime against the aged care resident (except for any crimes covered by the Spent Convictions scheme).

It is a criminal offence to induce a nomination through dishonesty, undue influence, or the use of threats, violence or abuse. VCAT can declare a nomination invalid if any of these are found to occur.

Preferences and values

A person making a nomination may state their preferences and values regarding the use of restrictive practices.

It is not mandatory for these preferences and values to be considered by the Nominee; however, it may be valuable in guiding the Nominee in making decisions.

Consent can be provided by the Nominee when:

• a residential aged care provider proposes to use a restrictive practice on a resident; and
• the aged care resident does not have capacity to provide informed consent to the use of restrictive practices themselves.

What are the criminal offences in the Act?

The Age Care Restrictive Practices Substitute Decision-maker Act 2024 (Vic) makes it a crime for someone to:

• induce, through dishonesty, undue influence or threats, substitute decision-maker nomination, and
• knowingly make a false or misleading statement in relation to another person’s substitute decision-maker nomination, or attempted substitute decision-maker nomination.

Can a guardian, power of attorney or medical treatment decision maker be a Nominee?

A person is not automatically appointed as a Restrictive Practices Substitute Decision-maker just because they are the aged care resident’s guardian, attorney or medical treatment decision maker. This means these types of decision-makers are not automatically empowered to provide informed consent to the use of restrictive practices as a substitute decision-maker in residential aged care.

However, a person can be appointed separately to act as a Restrictive Practices Substitute Decision-maker, while also being empowered to act as another type of decision-maker. For this to occur, that person must be explicitly and separately appointed under relevant Acts– for example, they may have both an enduring power of attorney under the Powers of Attorney Act 2016 (Vic) and can be validly appointed as a Restrictive Practices Substitute Decision-maker under the Aged Care Restrictive Practices Substitute Decision-maker Act 2024 (Vic).

What is the meaning of 'available, willing and able'?

To be appointed as the Restrictive Practices Substitute Decision-maker, the Nominee must be 'reasonably available willing and able' to make restrictive practices decisions for the aged care resident.

Therefore, they must be 'willing' to make a restrictive practices decision, i.e., whether to consent or to not consent to the use of restrictive practices. If a decision-maker does not wish to make a decision one way or the other, then they are not ‘willing’.

For a decision-maker to be ‘able’ to make a decision, they must have decision-making capacity.

To be "available", the person must be reasonably able to be identified and contacted.

Transitional provisions from Commonwealth temporary hierarchy to Victorian legislation

Any person who has been validly nominated as a Restrictive Practices Substitute Decision-maker under the Aged Care Act 1997 (Cth) prior to 1 July 2025 will be automatically recognised as a nominee under the Aged Care Restrictive Practices Substitute Decision-maker Act 2024 (Vic).

If there is no valid nominee, the aged care provider must proceed to Tier 2 - Temporary Restrictive Practices Substitute Decision-maker.

The information contained on this page can be found in the following factsheet: