Under Tier 2 of the hierarchy of decision-makers, if there is no Restrictive Practices Substitute Decision-maker appointed via a nomination, the aged care provider can identify a Temporary Restrictive Practices Substitute Decision-maker. Once identified, the person is automatically 'appointed' as the restrictive practices substitute decision maker.
A temporary decision-maker will be the first eligible adult identified from the list below who is in a close and continuing relationship with the aged care resident and who is reasonably available, willing and able to act:
- the spouse domestic partner of the aged care resident
- the primary carer of the aged care resident
- the oldest child of the aged care resident, followed by the other children in descending order of age if there are two or more adult children
- the older parent of the aged care resident, followed by the younger parent
- the oldest sibling of the aged care resident, followed by the other siblings of the aged care resident in descending order of age if there are two or more adult siblings.
How long are Temporary Restrictive Practices Substitute Decision-makers appointed for?
The appointment is temporary and will cease once the specific decision is made. Providers will have to go through the hierarchy again for any other decisions, such as for new or changed use of restrictive practices.
If the relevant decision has not yet been made, the Temporary Restrictive Practices Substitute Decision-maker’s appointment will also cease when:
- a Restrictive Practices Substitute Decision-maker is appointed, or
- a Restrictive Practices Substitute Decision-maker previously appointed becomes reasonably available, willing and able to make restrictive practices decisions, or
- another person higher in the Temporary Restrictive Practices Substitute Decision-maker list becomes reasonably available, willing and able to make a restrictive practices decision, or the Temporary Restrictive Practices Substitute Decision-maker ceases to be reasonably available, willing and able to make the restrictive practices decision
While in some cases the same person will be appointed as the Temporary Restrictive Practices Decision-maker each time, providers must consider the overarching hierarchy from the beginning to ensure that consent is sought from the appropriate person each time.
What is meant by 'close and continuing' relationship?
When considering whether someone has a ‘close and continuing’ relationship with the aged care resident, Aged Care providers should rely on their own assessment of the facts, and could consider aspects such as regular contact, or whether they are known to have a positive relationship with the aged care resident.
Providers are not expected to scrutinise relationships but should approach this requirement on a case-by-case basis to ensure the Temporary Restrictive Practices Substitute Decision-maker has sufficient connections to the aged care resident and is in a position to make decisions on their behalf.
What is the meaning of 'available, willing and able'?
To be appointed as the Temporary Restrictive Practices Substitute Decision-maker, the person must be ‘reasonably available, willing and able’ to make restrictive practices decisions on behalf of 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.
Who is a 'primary carer'?
The primary carer of a person is defined as an adult who has principal responsibility for the care of the person and is in a care relationship with the person (rather than, for example, a commercial relationship).
What if there is a dispute over appointments?
Disputes amongst potential Temporary Restrictive Practices Substitute Decision-makers should first aim to be resolved informally. If these issues cannot be resolved in this way, an application can be made to the Victorian Civil and Administrative Tribunal (VCAT) to resolve issues such as:
- the appointment of a Temporary Restrictive Practices Substitute Decision-maker
- seeking an appointment of another a Restrictive Practices Substitute Decision-maker
The information contained on this page can be found in the following factsheet:
If there are no potential Temporary Restrictive Practices Substitute Decision-makers available or they can't be identified, the provider should proceed to Tier 3 – VCAT - Appointed Restrictive Practices Substitute Decision-maker.
Reviewed 26 June 2025