Aged Care Restrictive Practices Substitute Decision-maker Act 2024

The Act rests on a small set of defined legal concepts, and the statute specifies how they operate together.

Decision‑making capacity. The Act gives a definitional test for decision‑making capacity (s 4). Capacity requires understanding relevant information and consequences, retaining information to the extent needed, using or weighing that information, and communicating the decision in any way. There is a statutory presumption that an adult has capacity unless evidence shows otherwise (s 4(2)). The Act expressly requires assessors to take reasonable steps to assess capacity at an appropriate time and in an appropriate environment (s 4(5)), and to provide practicable and appropriate supports (s 4(4)(d)) such as tailored formats, communication assistance, extra time or assistive technology (examples in s 4). The definition is decision‑specific and time‑specific (s 4(4)(a)-(b)): a person may have capacity for some decisions and not others, and incapacity may be temporary.

Restrictive practice and behaviour support plan. The Act uses the Commonwealth Quality of Care Principles’ concept of restrictive practice (s 3 definitions and note). It links the use of restrictive practices to behaviour support plans prepared in accordance with Part 4A Division 5 of the Quality of Care Principles (s 5 note; s 10(1)). The Act therefore does not itself define the clinical circumstances in which restrictive practices are appropriate; it requires alignment with the Commonwealth regulatory framework (s 10 and notes to ss 5 and 10).

Nomination and appointment. A nomination is a formal, witness‑certified written instrument making an eligible adult the nominee (s 5(1)-(4)). Eligibility excludes employees/agents of the approved provider involved in the provision of aged care to the nominator, those involved in preparing the behaviour support plan, persons subject to family violence orders affecting the nominator, and persons convicted (other than spent convictions) of offences against the nominator (s 5(6)). A nomination appoints the nominee as restrictive practices substitute decision‑maker automatically where the nominee is reasonably available, willing and able (s 7(1)-(3)). Where no such appointment exists, the Act prescribes a default temporary appointment order among family and carers, in a specific sequence (s 8(2)). VCAT can also appoint a substitute on application if no automatic or temporary appointment is in place (s 9).

VCAT’s powers. VCAT may consent to use of a restrictive practice where no substitute decision‑maker is reasonably available and the use is appropriate (s 10(2)). VCAT must have regard to the care recipient’s expressed or documented preferences and values (s 10(4)). VCAT can make orders about capacity and the validity of nominations or revocations, set aside nominations made through dishonest or undue influence, and make other orders considered necessary (ss 11-12).

Procedural and protective micro‑mechanics. The statute builds in procedural safeguards: nominations must be witnessed by an authorised affidavit taker who certifies visible capacity and voluntariness and confirms they are not the nominee, a relative, or an employee/agent of the approved provider (s 5(4)(d)). Any person assisting a nominator must record on the face of the nomination their name, address and nature of assistance provided (s 5(5)). Nomination and revocation instruments must be in English, or translated and certified in accordance with prescribed regulation (s 5(2)(c), (3)). The Act also inserts confidentiality protections and tribunal notice rules into Schedule 1 of the VCAT Act (Part 10).

Offences and corporate officer liability. Inducing a nomination by dishonesty, undue influence, threats, violence or abuse is a criminal offence carrying a maximum of 600 penalty units or five years’ imprisonment for natural persons and 2400 units for bodies corporate (s 18). Making a knowingly false or misleading statement concerning another person’s nomination is similarly punished (s 19). Officers of bodies corporate may be personally liable if they fail to exercise due diligence to prevent the corporate offence (s 20).

Interoperability concepts. The Act frequently cross‑refers to Commonwealth and other Victorian Acts. It links the restrictive practice decision regime to the Aged Care Act 1997 and the Quality of Care Principles (s 1, notes to ss 3, 5 and 10), and it excludes operation while a care recipient is subject to an inpatient treatment order under the Mental Health and Wellbeing Act 2022 (ss 7(4), 8(5)). The definitions of health facilities and primary carer import other legislative regimes (s 3).

Collectively, these concepts create an administrative and judicial pathway by which decisions about restrictive practices are made in preference order: personal nomination and automatic appointment, temporary family/carer appointment, VCAT appointment, and,if none of those exists,VCAT consent to an approved provider’s application for a restrictive practice included in the behaviour support plan.

The Act directly and indirectly affects a set of identifiable groups; the statute specifies the legal position of each.

Care recipients. The principal class is adults receiving aged care services or otherwise within the definition of care recipient as in the Aged Care Quality and Safety Commission Act 2018 (s 3 definitions). The Act changes who can lawfully make decisions about restrictive practices in relation to a care recipient, including creating a presumption of capacity and a statutory assessment standard (s 4). Care recipients who are already nominees under the Commonwealth Quality of Care Principles are transitioned into the new statutory regime (s 22).

Approved providers and their employees. Approved providers of aged care have two primary interactions with the Act. First, they must ensure behaviour support plans comply with the Commonwealth Quality of Care Principles because VCAT will only consider consent applications for restrictive practices that are set out in such a plan (s 10(1) and notes). Second, where no substitute decision‑maker is available, approved providers may apply to VCAT for consent to a restrictive practice (s 10(1)). The Act also expressly excludes certain persons from acting as nominees or temporary substitutes where they are employees or agents of the approved provider providing care to the nominator/care recipient or where they were involved in preparation of the behaviour support plan (s 5(6)(b)(i); s 8(4)(a)-(b); s 9(2)(c)(i)-(ii)). This constrains the universe of persons who may act and therefore affects provider staffing and delegation decisions.

Restrictive practices nominees and substitute decision‑makers. Adults nominated under the statutory process (s 5) become restrictive practices substitute decision‑makers by operation of s 7, provided they are reasonably available, willing and able. Persons appointed temporarily by the statutory hierarchy in s 8(2) acquire temporary decision‑making authority for the restrictive practice decision in issue until specified events (s 8(3)). Persons who apply to VCAT can be appointed under s 9(2), and such appointments continue until a later statutory appointment by nomination or VCAT revocation, or until the specified term ends (s 9(3)). The Act sets eligibility limits (including family violence, prior convictions, conflicts of interest) that affect who can serve (s 5(6); s 8(4); s 9(2)(c)).

Authorised affidavit takers and those assisting nominators. Authorised affidavit takers (as defined under the Oaths and Affirmations Act 2018) play a gatekeeping function: they must sign and certify nominations and revocations and must certify capacity and voluntariness (s 5(4); s 6(3)). Persons who assist must record their identity and the nature of assistance on the face of the document, and translations must meet prescribed certification (s 5(5)-(3); s 6(4)).

VCAT, the Public Advocate and the Tribunal system. VCAT takes an adjudicative and consent role under ss 9-12 and ss 10(1)-(4). The Act, by amendment to Schedule 1 of the VCAT Act (Part 10), makes the Public Advocate explicitly entitled to intervene or be joined in proceedings and requires the Tribunal to permit professional advocates to represent care recipients (new cl 4AAB, 4AAC). The Tribunal may refer matters for report to government departments, public authorities, approved providers or the Public Advocate (new cl 4AAE). The principal registrar has notice obligations (new cl 4AAF). Confidentiality protections for parties to proceedings are created (new cl 4AAG) with a penalty for unauthorised publication (20 penalty units).

Families and carers. The statutory temporary appointment sequence (s 8(2)) privileges spouses, domestic partners, primary carers and then family members in descending order. Those in that hierarchy gain immediate temporary decision‑making power for restrictive practice decisions if they are reasonably available, willing and able, unless excluded by s 8(4). This allocates decision authority among family and carers and affects intra‑family dynamics and incentives to engage with the care recipient and providers.

Criminal liability subjects and corporate officers. People who induce nominations by improper means, or who knowingly make false or misleading statements regarding another’s nomination, exposure to penalties and possible imprisonment (ss 18-19). Bodies corporate face higher penalty unit maxima. Officers of bodies corporate can face personal liability if they failed to exercise due diligence to prevent corporate commission of the offences (s 20). This section affects governance and compliance programmes within organisations that provide assistance with nominations or run care facilities.

Entities in related regulatory systems. The Act imports and makes relevant various other statutory regimes in Victoria and federally: the Aged Care Quality and Safety Commission Act 2018 (for definitions of approved provider and care recipient); the Quality of Care Principles (for behaviour support plans and the definition of restrictive practice); the Mental Health and Wellbeing Act 2022 (inpatient treatment order exclusion, ss 7(4), 8(5)); the Family Violence Protection Act 2008 (definition and exclusion where family violence intervention orders are current); the Disability Act 2006 and Health Services Act 1988 (for the meaning of health facility); and the Oaths and Affirmations Act 2018 (authorised affidavit takers). Those entities and their staff will need to align processes with the Act.

Regulators and advisers. Lawyers, accountants, advocates, and clinicians advising care recipients and families are affected in that they may be applicants to VCAT (s 9 examples include lawyers and accountants) and they must comply with the eligibility constraints if they wish to be appointed (s 9(2)(a), (c)). The Public Advocate’s statutory role is elevated by the Schedule 1 amendments (new cl 4AAB).

In sum, the Act reassigns decision authority over restrictive practices by creating a default legal architecture that affects care recipients, family carers, approved providers and the Tribunal system, and creates criminal sanctions and corporate‑officer exposure that affect institutional decision‑making processes.

The Act establishes specific duties and rights for different actors; these are concrete statutory obligations rather than guidance statements.

Duties of the nominator (person making the nomination). An adult nominator must have decision‑making capacity at the time of nomination and must understand the nature and effect of the nomination (s 5(1)(a)). The nomination must be in writing, in English or with certified translation, include specific identifying particulars for nominator and nominee, and be signed in the presence of an authorised affidavit taker (s 5(2)-(3)). The nominator may include statements of preferences and values about restrictive practices (s 5(2)(d)). The nominator has the right to revoke the nomination provided they have capacity and follow revocation formalities mirroring nomination formalities (s 6(1)-(3)).

Duties and certifications of authorised affidavit takers. The authorised affidavit taker must sign and date the nomination or revocation, specify their capacity to witness, and certify that at signing the nominator appeared to have decision‑making capacity, appeared to understand the nature and consequences, and appeared to sign freely and voluntarily (s 5(4); s 6(3)). They must certify they are not the nominee, not a relative of the nominator, and not an employee or agent of an approved provider providing aged care to the nominator (s 5(4)(d); s 6(3)(d)). This creates a duty of visible, contemporaneous assessment and creates disqualification conditions for the witness.

Duties of persons who assist. Any person assisting a nominator or revoker must record on the face of the document their name and address and describe the assistance provided (s 5(5); s 6(4)). If assistance is translation, prescribed translation certification requirements must be followed. This places an evidentiary duty on helpers and creates a record to guard against undue influence.

Duties and rights of substitute decision‑makers. A restrictive practices nominee becomes a substitute decision‑maker by operation of s 7 if reasonably available, willing and able. Those persons have the right to make restrictive practices decisions, but the appointment ends if they cease to be reasonably available, willing or able and can resume when they again meet those thresholds (s 7(3)). Temporary substitutes appointed by s 8 have rights to make a restrictive practices decision for a particular decision until the decision is made or until earlier events occur (s 8(3)). Substitutes must be eligible (not excluded under s 8(4)). VCAT‑appointed substitutes continue until superseded by a nomination appointment, the end of term, or VCAT revocation (s 9(3)).

Duties of approved providers. Approved providers may apply to VCAT for consent to use a restrictive practice, but only where the practice is set out in the care recipient’s behaviour support plan (s 10(1)) and when there is no available substitute decision‑maker (s 10(2)(a)). The provider therefore has a duty to ensure behaviour support plans are prepared in compliance with the Quality of Care Principles and to initiate VCAT proceedings where necessary. The provider also faces indirect duties created by the eligibility exclusions (e.g. not to employ as decision‑maker persons who were involved in behaviour support plan preparation for the care recipient) (s 5(6); s 8(4); s 9(2)(c)).

VCAT’s duties and powers. VCAT must apply the statutory tests when consenting to restrictive practices (s 10) and when deciding questions of capacity or nomination validity (ss 11-12). VCAT may make orders declaring capacity, setting aside nominations procured by undue influence or dishonesty, appointing or revoking substitutes, and any other orders considered necessary (ss 11-12(3)-(5)). VCAT has procedural duties in relation to parties and notice (ss 13, 16) and rehearing procedures (ss 14-17). Under the VCAT Act amendments, VCAT must provide notice to persons with a special interest, may require reports from government bodies, and must consider Public Advocate interventions (new cl 4AAB, 4AAE, 4AAF).

Rights of care recipients. Care recipients retain rights under the Act to have their decision‑making capacity determined by VCAT (s 11) and to have their preferences and values considered by VCAT when it consents to restrictive practices (s 10(4)). The Act preserves the presumption of capacity (s 4(2)) and requires assessors to take reasonable steps to optimise conditions for assessment (s 4(5)). Care recipients also gain procedural protections in tribunal proceedings: they may be represented by a professional advocate (new cl 4AAC) and VCAT must give notice to appropriate persons (new cl 4AAF). Confidentiality protections for proceedings are authorised (new cl 4AAG).

Criminal duties and constraints. Individuals have criminal duties not to induce nominations by dishonest or coercive means and not to make false or misleading statements about nominations (ss 18-19). Bodies corporate can be penalised; officers can be criminally liable for failing to exercise due diligence to prevent those corporate offences (s 20). These provisions create compliance obligations on organisations and individuals who assist with nominations or who might benefit from appointment.

Regulatory and administrative rights. The Governor in Council may make regulations prescribing forms and other necessary matters, including certification requirements for translations (s 21). This gives the executive branch a delegated legislative role to define administrative processes. The Act also provides that Schedule 1 amendments are temporary (repealed 1 July 2026) though the amendments made by it remain effective (s 25 and accompanying note).

Collectively, these duties and rights create a framework of formalities and evidentiary controls around who can be appointed and how appointment validity is sustained, and they create statutory decision points for VCAT to authorise restrictive practices or to resolve disputes.

The Act creates criminal offences with substantial statutory penalties and a framework for enforcement that extends both to individuals and bodies corporate and potentially to corporate officers.

Primary criminal offences. Two offences operate at the core of the enforcement architecture. Section 18 proscribes inducing the nomination of a restrictive practices nominee by dishonesty, undue influence or through threats, violence or abuse. Section 19 criminalises making a statement known by the maker to be false or misleading about another person’s restrictive practices substitute decision‑maker nomination.

Penalties. The statutory maxima are specific and replicated across the offences. For natural persons, the maximum penalty is 600 penalty units or imprisonment for 5 years, or both (ss 18(1) and 19). For bodies corporate the maximum penalty is 2400 penalty units (ss 18(1) and 19). The Act does not itself set the monetary value of a penalty unit; that is governed elsewhere. The presence of imprisonment as an available sanction for natural persons indicates the legislature intended these to be serious criminal offences.

Effect on nominations. Section 18(2) provides that where a person is found guilty of inducing a nomination under s 18(1), the nomination is void and of no effect. This provides an immediate legal remedy invalidating nominations found to be procured improperly.

Officer liability. Section 20 creates potential criminal liability for officers of bodies corporate where the body corporate commits the offences in s 18(1) or 19 and the officer failed to exercise due diligence to prevent the commission of the offence. The section sets out matters a court may consider in assessing due diligence (what the officer knew or ought to have known; whether the officer could influence the body corporate; what steps the officer took or could reasonably have taken), permits an officer to rely on defences available to the corporate body, and allows prosecution of an officer whether or not the body corporate has been prosecuted or found guilty (s 20(1)-(4)). This widens enforcement exposure to leadership within organisations.

Tribunal enforcement and remedies. VCAT has a suite of remedial powers separate from criminal enforcement. VCAT may declare nominations invalid and set them aside where procured by dishonesty, undue influence, threats, violence or abuse (s 12(3)(c), 12(4)). VCAT may also make orders declaring a person to be the restrictive practices substitute decision‑maker, revoke appointments, and make other orders as necessary (s 12(3)(d)-(e)). These civil remedies operate in parallel and provide prompt judicial relief that does not depend on criminal conviction.

Procedural sanctions. Schedule 1 (inserted into the VCAT Act by Part 10) creates an express confidentiality offence for publication of identifying reports of proceedings, punishable by 20 penalty units (new cl 4AAG(1)). VCAT may make confidentiality orders where it considers that doing so is in the public interest (new cl 4AAG(2)). This is an additional enforcement mechanism addressing privacy and media conduct in proceedings.

Regulatory framing. The Governor in Council can make regulations and prescribe penalties not exceeding 20 penalty units for contraventions of the regulations (s 21(1)(b)). Regulatory offences therefore sit at a much lower penalty level but can capture administrative non‑compliance with prescribed forms and translation certification requirements.

Enforcement actors and routes. Criminal enforcement is a matter for prosecuting authorities; VCAT’s powers are judicial and civil. The Public Advocate is expressly permitted to intervene or be joined in proceedings (new cl 4AAB), which may increase the likelihood of public interest enforcement in cases of disputed capacity or undue influence. The Tribunal may refer matters to government departments or approved providers for investigation and report (new cl 4AAE), integrating administrative fact‑finding with tribunal decision‑making.

Costs and incentives. The threat of heavy penalties and possible imprisonment for individuals creates a strong deterrent against coercive or dishonest procurement of nominations. Corporate officer liability incentivises organisations to maintain compliance systems, training, and oversight. However, criminal enforcement can be slow and resource‑intensive; VCAT’s civil remedies (voiding nominations, setting aside instruments) provide a more immediate mechanism to correct improper nominations. The Act therefore blends criminal deterrence with prompt civil/regulatory processes to police the nomination and appointment regime.

The Act is designed to operate in tandem with a cluster of Commonwealth and Victorian statutory regimes. The statute both imports definitions and builds its operation around requirements located elsewhere, producing specific cross‑system dependencies.

Aged Care Act 1997 and Quality of Care Principles. The Act is expressly enacted to provide for restrictive practices substitute decision‑makers for the purposes of the Commonwealth Aged Care Act 1997 (s 1(a)). It uses the Quality of Care Principles as the substantive rulebook on restrictive practices and behaviour support planning: behaviour support plan is defined by reference to Division 5 of Part 4A of the Quality of Care Principles (s 3 definition and note); s 10(1) allows an approved provider to apply to VCAT for consent only where the restrictive practice is set out in the behaviour support plan. The Act also cross‑references the Quality of Care Principles’ procedural requirements (see notes to ss 5 and 10 referencing ss 15FA-15FC and s 15HA). Practically, this means the Commonwealth regulatory framework retains primary control over the clinical justification, requirements for last resort, and plan content; the Victorian statute supplies the appointment and tribunal architecture necessary to operationalise decisions within the Commonwealth framework.

Victorian Civil and Administrative Tribunal Act 1998. The Act amends Schedule 1 of the VCAT Act by inserting a new Part 2AA governing proceedings under this Act (Part 10). The amendments give the Public Advocate explicit intervention rights (new cl 4AAB), permit professional advocates to represent care recipients (new cl 4AAC), prescribe constitution of the Tribunal for rehearings (new cl 4AAD), and permit referrals to government departments and approved providers for report (new cl 4AAE). The Tribunal’s notice and confidentiality processes for these matters are specified (new cl 4AAF and 4AAG). These changes integrate the new statutory regime with VCAT’s procedures and expand the Tribunal’s fact‑gathering and protective capacities. The insertion is temporary (repealed 1 July 2026, s 25), though the explanatory note states the repeal does not affect the continuing operation of the amendments made, pursuant to the Interpretation of Legislation Act 1984.

Mental Health and Wellbeing Act 2022. The Act excludes its operation where a care recipient is subject to an inpatient treatment order within the meaning of the Mental Health and Wellbeing Act 2022 (s 7(4) and s 8(5)). This exclusion preserves the separate statutory regime for inpatients, preventing overlapping appointment rules and likely differing safeguards applicable to persons under involuntary treatment.

Family Violence Protection Act 2008. The definition of domestic partner and eligibility exclusions reference family violence intervention orders under the Family Violence Protection Act 2008. Persons subject to such an order in relation to the nominator/care recipient are disqualified from acting as nominees or temporary substitutes (s 5(6)(b)(iii); s 8(4)(c); s 9(2)(c)(iii)). This creates an interaction designed to protect victims of family violence from appointment of persons subject to an active order.

Disability Act 2006; Health Services Act 1988; Social Services Regulation Act 2021; Residential Tenancies Act 1997. The Act defines health facility broadly by reference to several Victorian statutes (s 3). This links the Act’s reach to institutional settings such as residential services, hospitals, SDA dwellings and disability accommodation, ensuring the substitute decision‑maker regime applies across these settings.

Oaths and Affirmations Act 2018. The role of authorised affidavit takers in certifying nominations and revocations imports the formalities and authorised witness categories in the Oaths and Affirmations Act (s 3 definition). This ties the evidentiary requirements to existing statutory witness categories.

Spent Convictions Act 2021. The Act’s eligibility exclusions for nominees and temporary substitutes refer to convictions and spent convictions as defined in the Spent Convictions Act 2021 (s 3 definitions). This interaction sets out how historical criminal records affect eligibility.

Corporations Act 2001 (via s 20 definitions). Section 20 defines “body corporate” and “officer” by reference to the Corporations Act (s 20(5)), importing corporate governance definitions to apply corporate officer liability rules to corporate involvement in offences.

Interpretation and commencement regimes. The Act’s commencement and transitional provisions interact with the Interpretation of Legislation Act 1984 and set timings relevant to operation of the Schedule 1 amendments and transitional recognition of nominations and appointments made under the Quality of Care Principles (ss 2, 22-23; Part 10). The Schedule insertion is temporary and will be repealed 1 July 2026 (s 25).

Regulation-making power. Section 21 grants extensive regulation‑making power to prescribe forms, certification requirements, and other matters necessary to implement the Act, including penalties for regulation breaches. This delegated legislative capacity allows the executive to create administrative detail which may be necessary to make the cross‑system interactions operational.

Overall, the Act operates as a bridge between Victorian tribunal and criminal law and the Commonwealth aged care regulatory framework, while preserving existing mental health involuntary treatment processes. Its effectiveness depends on correct alignment with the Quality of Care Principles and the administrative instruments made under the Act (forms, translation certification and so on).

This Act is newly enacted and the endnotes indicate the legislative timing and lack of subsequent amendments as at publication.

Enactment and commencement. The Act was assented to on 3 December 2024 and came into operation on 1 July 2025, under section 2(2) and the endnotes. Section 2(1) otherwise allows proclamation of commencement for different provisions, but the fallback commencement date is 1 July 2025 (s 2(1)-(2)).

Table of Amendments status. The endnotes include a Table of Amendments, which states that there are no amendments to the Aged Care Restrictive Practices Substitute Decision‑maker Act 2024 by Acts and subordinate instruments at the date of publication (Endnotes, Table of Amendments). That indicates the text presented is the original enacted version (Version No. 001, as at 1 July 2025).

Transitional provisions. The Act contains explicit transitional clauses to carry over instruments made under the Commonwealth Quality of Care Principles into the Victorian statutory framework. Section 22 treats nominees nominated under section 5A of the Quality of Care Principles who were in force immediately before commencement of s 5 of this Act as having been nominated under s 5 on and after that commencement. Section 23 treats restrictive practices substitute decision‑makers appointed under Item 1 in the Table to s 5B(2) of the Quality of Care Principles and who were substitute decision‑makers immediately before commencement of s 7(1) as being appointed by force of s 7(1) on and after that commencement. These transitional provisions preserve continuity of appointments and avoid vacuums caused by change in legal architecture.

Amendments to Schedule 1 of the VCAT Act. Part 10 inserts a new Part 2AA into Schedule 1 of the VCAT Act (s 24). That inserted Part creates special tribunal procedures relating to the new Act (intervention rights for the Public Advocate, representation by professional advocates, tribunal constitution rules for rehearings, ability to refer matters for investigation and report, notice rules, and confidentiality powers). Section 25 provides that Part 10 itself is repealed on 1 July 2026. The explanatory note clarifies that repeal of the inserted Part does not affect the continuing operation of the amendments made by it (Interpretation of Legislation Act 1984, s 15(1) note). This effectively makes those Schedule 1 amendments temporary in their own structural insertion, but the operational amendments remain.

Regulatory instruments. Section 21 empowers the Governor in Council to make regulations, including prescribing forms and translation certification requirements and penalties up to 20 penalty units for contraventions. At the time of publication the Table of Amendments records no regulations notified under the Act; future regulatory instruments may be made under this delegated power and will appear as subordinate instruments subject to amendment histories.

No subsequent Acts or subordinate instruments. The endnotes state that there are no amendments made to the Act by other Acts or subordinate instruments as at the version date. This suggests the Act, in its Version No. 001, is the governing text and implements the scheme from commencement without further alteration up to 1 July 2025.

Given the Act’s reliance on regulations for administrative detail, the absence of a regulation history in the published version means that practical implementation particulars (forms, translation certification standards, etc.) may have been addressed by regulations after the version date or will need to be adopted to operationalise the scheme fully.

The source provided contains no litigation history. There are no cases referenced in the Act, and the Table of Amendments and Endnotes record no reported judicial decisions concerning its provisions as at the publication date. Because the Act is newly enacted (assented 3 December 2024; commenced 1 July 2025), there may be limited or no decided cases arising from it in the published record at the date of this text.

Procedural paths likely to generate litigation. The Act creates several decision points which may be the subject of future litigation or Tribunal review:

• VCAT decisions to consent to restrictive practices (s 10). Decisions about appropriateness and the interpretation of “use only as a last resort” as derived from the Quality of Care Principles may generate appeals or rehearings. The Act provides rehearing rights (Part 6, ss 14-17) and specifies Tribunal constitution for rehearings (new cl 4AAD).

• Validity of nominations and allegations of undue influence. VCAT may set aside nominations procured by dishonesty or undue influence (s 12(4)), and criminal prosecutions under s 18 may follow. Disputes over capacity at the time of nomination are subject to VCAT orders (s 11), and VCAT may declare nominations void under s 11(4).

• Officer liability and corporate prosecutions. Section 20 could lead to prosecutions of corporate officers where bodies corporate are charged under ss 18 or 19; issues of what steps constitute due diligence, and whether an officer was in a position to influence the body corporate, may be litigated.

• Confidentiality and publication orders. The new Schedule 1 confidentiality provisions (new cl 4AAG) make unauthorised identification a 20 penalty unit offence; this could give rise to litigation about the scope of “reasonable identification”, public interest exceptions, and the Tribunal’s power to grant or refuse confidentiality orders.

Rehearing and appeal pathways. The Act provides for rehearings in VCAT (Part 6) and details who may apply for rehearings and within what timeframe (s 14(3)). The VCAT Act and judicial review pathways under Victorian administrative law will also govern appeals from VCAT decisions. The inserted Schedule 1 provisions determine Tribunal composition for rehearings and provide for referrals and joining the Public Advocate, which may alter litigation strategy.

Because the Act closely interacts with Commonwealth Quality of Care Principles, litigation may also raise questions about the interaction between Commonwealth clinical standards and Victorian appointment and tribunal processes, potentially producing cases that examine constitutional or federal‑state operational issues, although the Act itself does not purport to change Commonwealth substantive standards.

At present, the statute record contains no judgments. Practitioners should therefore anticipate initial test cases on capacity assessment, the meaning of “reasonably available, willing and able”, the sufficiency of authorised affidavit taker certifications, and the boundary between the Act and mental health involuntary treatment provisions.

The Act contains multiple technical traps and points where a failure to observe procedural or substantive requirements will have immediate legal effect. The following are concrete issues to watch for, grounded in the statutory text.

Strict formalities for nominations and revocations. Nominations must be in writing, in English (or translated and certified), include specific particulars, and be signed in the presence of an authorised affidavit taker who must certify visible capacity and voluntariness (s 5(2)-(4); s 6(2)-(3)). If these formalities are not satisfied, VCAT can nonetheless declare a nomination valid (s 12(3)(a)) or invalidate it (s 12(3)(c)), but that requires tribunal action. Practically, an informal nomination or incorrectly witnessed instrument risks being treated as ineffective until validated by VCAT.

Authorised affidavit taker conflicts. The authorised affidavit taker must certify they are not the nominee, not a relative of the nominator, and not an employee or agent of an approved provider that provides aged care to the nominator (s 5(4)(d); s 6(3)(d)). Where an affidavit taker fails to observe that restriction, the witnessing may be invalid and the nomination vulnerable. Organisations commonly use staff to witness documents; under the Act that practice will often be impermissible.

Assistance must be recorded on the face of the document. Any person who assists must write or stamp their name and address and describe the assistance provided on the face of the nomination or revocation (s 5(5); s 6(4)). Failure to record assistance risks later claims of undue influence and may be used by VCAT to set aside a nomination (s 12(4)).

Translation certification required. If the statement of preferences (or the nomination itself) is in a language other than English, it must be translated and comply with prescribed certification requirements (s 5(3)). The Act contemplates regulations or prescribed requirements; absent compliance, a translation will not meet the statutory formality and a nomination may be contested.

Eligibility exclusions can be subtle. The Act disqualifies nominees who are employees or agents of the approved provider providing aged care to the nominator, persons who were involved in preparing the behaviour support plan, persons subject to family violence intervention orders in which the nominator is an affected family member, and persons with convictions for offences against the nominator (s 5(6)). These exclusions also apply to temporary appointments (s 8(4)) and VCAT appointments (s 9(2)(c)). Practitioners must screen nominees against these criteria; failure to do so may produce an invalid appointment or a VCAT challenge.

Automatic appointment can lapse and resume. An appointment by force of s 7(1) ceases to have effect if the substitute ceases to be reasonably available, willing or able, and resumes when the substitute again becomes reasonably available, willing and able (s 7(3)). That introduces uncertainty for providers and care recipients as to when a substitute’s authority is legally in effect. What constitutes “reasonably available, willing and able” is not defined, so factual disputes are likely.

Temporary appointments are limited and governed by priorities. The hierarchy in s 8(2) appoints the first adult in a close and continuing relationship who meets availability criteria, following a precise sequence. That order may not reflect the nominator’s preferences unless they made a nomination. Multiple family members may dispute priority; VCAT can be asked to determine appointment validity under s 12. The temporary appointment ends when the decision is made or when certain events occur (s 8(3)). Practically, providers must navigate these potential conflicts in time‑sensitive situations.

VCAT consent only where no substitute is reasonably available. An approved provider may apply to VCAT for consent to use a restrictive practice only if the care recipient’s behaviour support plan contains the restrictive practice and there is no reasonable substitute decision‑maker available under ss 7-9 (s 10(1)-(2)). Providers who proceed without checking whether a substitute is available risk acting outside the statutory pathway.

VCAT discretion is broad but procedural. VCAT may consent and may impose conditions and time limits (s 10(3)). It must have regard to preferences and values (s 10(4)). The Act does not entitle providers to consent as of right; providers should prepare to adduce evidence about why no substitute is available and why the practice is appropriate in the behaviour support plan.

Criminal exposure for inducing nominations or making false statements. The offences in ss 18-19 carry high penalties and apply to both individuals and corporations. A nomination found to be induced by wrongdoing is void (s 18(2)). Persons assisting must take care not to cross the line into undue influence, dishonesty or coercion, and organisations must ensure training and oversight to avoid corporate criminal liability and officer liability under s 20.

Public Advocate involvement and confidentiality. The Schedule 1 amendments permit the Public Advocate to intervene and be joined in proceedings (new cl 4AAB), and give VCAT power to make confidentiality orders (new cl 4AAG) with a penalty for unauthorised publication. Parties should be prepared for Public Advocate involvement in contested matters and should expect confidentiality applications and restrictions on reporting.

Temporal limits and repeal of Part 10. Part 10 inserts the new Schedule 1 Part 2AA into the VCAT Act but is itself repealed on 1 July 2026 (s 25). The explanatory note indicates the repeal does not affect the continuing operation of the amendments, but practitioners should be alert to any administrative or procedural changes arising from that sunset and any regulatory instruments made in the interim.

No guidance on “reasonably available, willing and able” or standard of proof. The Act leaves undefined how to determine reasonable availability, willingness and ability, and does not set a standard of proof for VCAT’s findings related to capacity or the validity of nominations. These gaps will produce early litigation and reliance on procedural fairness principles and existing VCAT practices to fill the gaps.

Regulatory detail delegated. The Act relies on regulations to prescribe forms and translation certification requirements (s 21). Until those regulations issue, compliance uncertainty may remain about acceptable translation certification, form content and prescribed processes.

Practitioners and providers should therefore be careful to follow the formalities strictly, to document assistance, to screen nominees for eligibility, to maintain records and audit trails, and to involve VCAT early when there is any dispute about capacity, availability, or validity.

This section sets out practical, statute‑based steps for the main affected actors: care recipients and their advisers; approved providers and facility staff; potential nominees and temporary substitutes; authorised affidavit takers and persons assisting; and corporate entities. It focuses on actions that map directly to the Act’s requirements.

For care recipients and their advisers (lawyers, advocates, clinicians)

• Ensure decision‑making capacity at the time of nomination: verify the nominator understands the nature and effect of the nomination and has capacity as defined by s 4. Take reasonable steps so the assessment is conducted when the person is most likely to demonstrate capacity (s 4(5)) and provide practicable and appropriate support under s 4(4)(d) (tailored communication, visual aids, technology, extra time).

• Prepare the nomination document to statutory form: include full name, date of birth and residential address of the nominator and full name and residential address of the nominee (s 5(2)(a)). Consider including a statement of preferences and values regarding restrictive practices (s 5(2)(d)).

• Use an authorised affidavit taker as required: have the document signed in the presence of an authorised affidavit taker who will sign, date, state their capacity to witness, and certify the nominator’s apparent capacity and voluntariness (s 5(4)). Ensure the affidavit taker is not the nominee, not a relative, and not an employee or agent of an approved provider that provides aged care to the nominator (s 5(4)(d)).

• Document any assistance: any person assisting must write or stamp their name and address on the face of the document and describe the assistance provided (s 5(5)). For translation assistance, comply with prescribed certification requirements when regulations specify them (s 5(3), (5)).

• Keep originals and provide copies: retain the original witnessed and certified nomination or revocation instrument and provide certified copies to the nominee, approved provider, relevant treating clinicians, and to VCAT if a dispute is anticipated.

For approved providers and facility staff

• Link restrictive practice actions to behaviour support plans: do not apply for VCAT consent for a restrictive practice unless the practice is in the care recipient’s behaviour support plan prepared under the Quality of Care Principles (s 10(1)). Ensure behaviour support plans comply with Division 5 of Part 4A of the Quality of Care Principles and that clinical justification and “last resort” criteria are documented (notes to ss 5 and 10).

• Check for a substitute decision‑maker before applying to VCAT: prior to applying to VCAT for consent under s 10, verify whether a restrictive practices substitute decision‑maker exists by force of s 7 (nomination) or s 8 (temporary appointment) or by VCAT appointment (s 9). The provider must be able to demonstrate that no substitute is reasonably available, willing and able (s 10(2)(a)).

• Implement record checks for eligibility exclusions: screen proposed nominees and temporary substitutes for disqualifying factors (employee/agent status, involvement with behaviour support plan, family violence orders, relevant convictions) as set out in ss 5(6), 8(4) and 9(2)(c). Keep documentation of that screening.

• Prepare evidence for VCAT applications: if applying to VCAT under s 10, assemble evidence of the care recipient’s behaviour support plan, the clinical basis for the restrictive practice, evidence that no substitute is reasonably available and why the practice is appropriate. Expect VCAT to impose conditions or time limits (s 10(3)).

• Training and policies: implement internal policies to ensure staff do not act as nominees or witnesses where the Act forbids it, train staff on the witnessing and assistance rules, and embed checklists for nomination validity.

For nominees, temporary substitutes and potential VCAT applicants

• Evaluate eligibility before accepting nomination: confirm you are not excluded under s 5(6), s 8(4) or s 9(2)(c) (no family violence order, no relevant convictions, not an employee or behaviour support plan author).

• Be prepared to show availability, willingness and ability: the statutory appointment by force requires a person be “reasonably available, willing and able” (s 7(1)). Keep contemporaneous records (email confirmations, availability calendars) so that providers and VCAT can verify these facts if disputed.

• Know the scope and duration of role: understand that a statutory appointment by force ceases if you cease to be reasonably available, willing or able and resumes when those conditions are met (s 7(3)). Temporary appointments under s 8 are time‑limited and end when the decision is made or certain events occur (s 8(3)). VCAT appointments under s 9 have terms and are subject to VCAT revocation (s 9(3)).

For authorised affidavit takers and those who assist

• Adhere to witness rules: authorised affidavit takers must sign, state their witnessing capacity and certify the nominator’s apparent capacity and voluntariness (s 5(4); s 6(3)). They must also confirm they are not a nominated person, relative, or employee/agent of the approved provider providing care to the nominator (s 5(4)(d); s 6(3)(d)).

• Record assistance transparently: persons who assist must put their name, address and the nature of assistance on the face of the nomination or revocation (s 5(5); s 6(4)). For translation assistance, ensure compliance with prescribed translation certification requirements.

For corporate entities, directors and officers

• Implement due diligence: adopt compliance systems to prevent corporate involvement in offences under ss 18-19. Section 20 allows officer prosecution where due diligence is not exercised, and lists relevant considerations. Systems should include policies on who may witness or assist with nominations, training on coercion and undue influence, screening of nominees against exclusion criteria, and records management.

• Avoid conflicts of interest: ensure staff involved in care provision or behaviour support plan preparation do not act as nominees or witnesses.

• Recordkeeping: maintain clear records of requests for consent, steps taken to locate substitute decision‑makers, correspondence with family and nominee candidates, and documentation of clinical justification in behaviour support plans.

For VCAT and Public Advocate interactions

• Prepare for tribunal evidence: VCAT will require evidence of capacity, voluntariness, clinical necessity, behaviour support plan content, and availability of substitute decision‑makers. The Tribunal may order reports from government departments and approved providers (new cl 4AAE).

• Notice obligations and confidentiality: the principal registrar must give notice to persons with a special interest, and VCAT has power to impose confidentiality orders with a penalty for breaches (new cl 4AAF, 4AAG). Practitioners should supply required notices and consider confidentiality applications at an early stage.

Regulatory instruments and forms

• Monitor regulations: s 21 allows the Governor in Council to prescribe forms, translation certification requirements and other matters. Practitioners should monitor the Victorian Government Gazette and relevant departmental guidance for these regulations to ensure nomination and translation procedures comply with any prescribed standards.

In all cases, adopt conservative, documentary practice: use the statute’s prescribed formality, keep contemporaneous records proving capacity, assistance, and availability; screen nominees against eligibility criteria; and when in doubt, seek VCAT directions early rather than acting on contested or informal authority. These steps align with the statutory duties and reduce exposure to civil and criminal penalties.