Aged Care Restrictive Practices Substitute Decision-maker Regulations 2025

The central concept imported from the Act and reflected in these Regulations is the restrictive practices nominee. A restrictive practices nominee is a person whom an individual (the nominator) appoints to make decisions about the use of restrictive practices on that individual in an aged care setting, should the individual lose decision-making capacity. The Act obviously provides the legal framework for this appointment and the nominee’s decision-making power; the Regulations merely prescribe the forms for making or revoking the appointment.

Restrictive practices are interventions that restrict a person’s rights or freedom of movement, and are regulated under both Commonwealth aged care law (Quality of Care Principles) and Victorian law. They typically include chemical restraint (medication to control behaviour), physical restraint (e.g. bed rails), mechanical restraint (devices), seclusion, and environmental restraint. The nominee’s role is to consent to or refuse such practices on behalf of the care recipient who has lost capacity, guided by the recipient’s preferences and values as stated in the nomination.

The concept of decision-making capacity is central to the forms. The nominator must attest that they have capacity at the time of making the nomination or revocation. The witness must separately certify that the person appears to have capacity and understands the nature and consequences. This reflects the legal principle that a person cannot appoint a substitute decision-maker if they already lack capacity; the appointment must be made pre-emptively, while the person retains capacity. The witness’s certification is not a formal capacity assessment by a doctor or psychologist, but a lay observation. This introduces risk: a witness may incorrectly assess capacity, and if the nominator lacked capacity at signing, the nomination could be invalid. The Act likely contains a rebuttable presumption of capacity; the Regulations do not address this.

Another concept is free and voluntary signing. The witness must certify that the person freely and voluntarily signed, without coercion or undue influence. This is a safeguard against duress, particularly relevant in institutional aged care settings where residents may be pressured by staff or family. The witness cannot be a relative or an employee/agent of the aged care provider, which reduces the potential for conflict of interest but may make it harder to find a convenient witness.

The preferences and values field in Form 1 is significant. It is the mechanism by which the care recipient’s will is made known to the future nominee. If the recipient writes “Nil”, the nominee is left without expressed guidance. The Regulations do not prescribe the level of detail or whether the preferences can be updated informally. This is a potential gap: a person might wish to change their preferences without revoking the nomination; the Regulations do not provide a form for that. The Act presumably does, or the person would need to revoke and re-nominate.

The concept of revocation is also present. Form 2 allows a person to revoke a previous nomination. The same capacity and witness requirements apply. The revocation does not need a reason. There is no requirement to notify the former nominee or the aged care provider of the revocation; the Act may impose such obligations, but the Regulations are silent. This is a compliance risk: if a person revokes a nomination but the provider is not informed, the provider might continue to rely on the old nominee’s consent.

The concepts are largely about private ordering , allowing an individual to pre-select who will make invasive decisions on their behalf, rather than leaving it to a default substitute decision-maker under other laws (e.g. guardianship, medical treatment decisions). The Regulations facilitate that private ordering but also impose procedural hurdles (witness requirements, capacity certification) that increase the transaction cost of exercising this autonomy. This is a trade-off between individual freedom and systemic protection against abuse.

The Regulations directly affect three categories of persons: (1) individuals receiving or likely to receive aged care who wish to appoint a restrictive practices nominee; (2) the persons they nominate; and (3) aged care providers, who will need to rely on valid nominations before applying restrictive practices to residents who lack capacity.

Care recipients (or potential care recipients) are the most directly affected. They are the persons who must have capacity to make the nomination. This includes people currently living in residential aged care, those receiving home care packages, and those planning for future care. The Regulations impose on them the burden of finding an authorised affidavit taker, completing the form, and articulating their preferences and values in writing. For people with disabilities, language barriers, or limited literacy, the assistance section allows a helper, but the helper must be described and sign. The requirement to insert specific preferences may be challenging for someone who has never thought about restrictive practices. The form does not provide examples or prompts. This could lead to vague or generic statements that offer little guidance to the nominee.

The nominee is affected because they are being appointed to make serious, potentially freedom-restricting decisions. The Regulations do not require the nominee to sign the nomination form or indicate acceptance. The nominee may not even be aware of the appointment until it is invoked. This creates a risk of an unwilling or unsuitable nominee being appointed. The Act likely requires acceptance or notification, but the Regulations do not address it. The nominee also has no role in the revocation process , the nominator can unilaterally revoke.

Aged care providers are indirectly affected. They must have policies and procedures for identifying valid nominations and revocations. They must check the formalities: is the form properly witnessed by an authorised affidavit taker? Is the witness conflicted? Does the form appear to have been freely signed? Providers bear the legal risk if they rely on an invalid nomination. They may also be the ones who inform care recipients of the option to appoint a nominee. The Regulations do not impose any duty on providers to offer the nomination form or assist in completing it, but the Act likely does (or at least the broader aged care regulatory framework requires seeking consent from a substitute decision-maker before using restrictive practices). Providers will need to store these forms and keep them accessible.

Authorised affidavit takers are affected as potential witnesses. These include justices of the peace, lawyers, police officers, and certain other officials. They must be careful not to witness if they are a relative or an employee/agent of the provider. They perform a gatekeeping function but without legal training in capacity assessment. If they wrongly certify capacity, they could be exposed to liability under the Act (if it contains offences) or under general law. The Regulations do not indemnify them.

Relatives and staff are excluded from being witnesses. This is a protection but also a practical burden. For a person whose only regular visitors are family and whose only professional contacts are aged care workers, finding a qualified, independent witness may be difficult, especially in a facility. The witness must also not be the nominee, which further reduces options.

Legal practitioners and advocacy services may be consulted to assist with completing the forms, particularly the preferences section. The assistance field in the form is open ended; it allows translation, writing, reading, or other help. The helper must sign and describe the assistance, but there is no certification about the helper’s independence or lack of conflict. This is a gap: a helper who is also an aged care employee could influence the content of the preferences.

In economic terms, these Regulations impose a small but nontrivial compliance cost on every person who wishes to exercise the right to appoint a nominee. The cost of finding an authorised affidavit taker (time, travel, possibly a fee for a private justice of the peace or lawyer) plus the cognitive load of articulating preferences may deter some people from making a nomination, leaving them without a pre-selected decision-maker and falling back on default arrangements under other laws. This is the cost of the safeguard: it may reduce the overall uptake of nominations, thereby defeating the Act’s purpose of expanding individual choice. A free-market analysis would note that if the forms were simpler (e.g. no witness, or online witnessing), uptake would likely be higher, increasing autonomy. The Regulations thus add frictional costs to private ordering.

The Regulations do not themselves create duties or rights; those arise from the Act. However, the forms embed certain duties and rights by way of the certifications and confirmations.

Duty of the nominator: The person making the nomination must honestly confirm their age (18+), that they have decision-making capacity, and that they understand the nature and effect of the nomination. There is a duty not to make a false statement, which could be an offence under the Act or under the Crimes Act 1958 (Vic) for perjury or false documentation. The form is a statutory declaration analogue; it is witnessed and signed, so it carries legal weight.

Right to nominate: The core right is the right to appoint a restrictive practices nominee. The Regulations facilitate the exercise of that right. The nominator has the right to choose any adult as nominee, subject to the Act’s restrictions (if any). The nominator also has the right to revoke at any time while they retain capacity. Form 2 enables that right. The revocation does not require consent from the nominee or anyone else.

Right to assistance: The forms allow another person to assist the nominator or revoker. The assistant must describe the assistance provided. This is a practical right for persons with communication or literacy difficulties. However, the assistant has no duty beyond signing and describing; there is no requirement that the assistance be impartial. An aged care worker could assist while still being prohibited from being the witness. This is a potential avenue for undue influence that is not fully guarded by the form.

Duty of the witness: The witness has a duty to certify certain matters: that the person appeared to have decision-making capacity, understood the nature and consequences, and signed freely and voluntarily. The witness must also certify that they are not the nominee, not a relative, and not an employee or agent of the care provider. The witness must be an “authorised affidavit taker” , this is a defined category under other Victorian law (e.g. the Oaths and Affirmations Act 2018). The witness’s certification creates a rebuttable presumption that the form was validly executed. If the witness neglects to check capacity or independence, they may be liable for negligence or for an offence under the Act.

No duty on the nominee: The Regulations do not require the nominee to be notified, to sign, or to accept. The nominee’s rights and duties are entirely governed by the Act. This is a significant gap in the forms. A nominee could be utterly unaware of their appointment until a crisis occurs. That undermines the utility of the scheme. A prudent individual should notify the nominee separately and obtain their informal agreement, but the forms do not prompt this.

No duty on the aged care provider: The Regulations do not oblige providers to maintain these forms, check their validity, or inform care recipients of the right to nominate. The Act likely does, but the regulations themselves impose no new obligations. Providers will still have to comply with the Act and presumably the broader aged care quality standards. The forms are merely documentation tools.

Right to revoke: Form 2 gives the right to revoke a nomination at any time while the person has capacity. The revoker must certify capacity and understanding. The revocation is unilateral. There is no requirement to notify the former nominee or the provider. If the revocation is not communicated practically, the provider might continue to rely on the old nomination, with potential legal consequences. The person revoking has a practical right, but enforcement of that right relies on the revocation being lodged with the provider or otherwise made effective.

Privacy rights: The forms contain personal information (name, birth date, address, preferences). The Regulations do not address how this information must be stored or shared. The Act may contain provisions about privacy and consent. The forms themselves do not include a consent to collection or use of information. Aged care providers must comply with the Privacy Act 1988 (Cth) and the Aged Care Act 1997 (Cth) in handling these forms.

The duties and rights are largely formalistic. The Regulations create a framework for the exercise of existing rights under the Act. The main practical takeaway is that the process is not automated; it requires active steps and third party witnesses. This may protect against coercion but also raises the bar for exercising personal autonomy.

The Regulations themselves do not impose any penalties. They are a statutory rule prescribing forms; they contain no criminal offences, civil penalties, or infringement notice provisions. Any penalties for misuse of the forms, false statements, or improperly witnessing would arise from the Act or from other legislation.

The form requires a signature and certifications. If a person knowingly makes a false statement in the nomination or revocation, they could be charged with an offence under the Act (if it contains such an offence) or under the general criminal law of Victoria. For example, making a false statutory declaration or false document may be an offence under the Crimes Act 1958 (Vic) or the Oaths and Affirmations Act 2018. The witness’s certificate is also a statement that could attract perjury charges if false.

The witness duties are significant. If a witness certifies that a person appeared to have capacity when they obviously did not, the witness could be liable for negligence or professional misconduct if they are a regulated professional (e.g. lawyer, justice of the peace). The Regulations do not provide immunity. The witness must also not be an employee or agent of the provider. If a witness falsely denies such a relationship, they may face liability.

Enforcement of the nomination and revocation processes falls to the aged care provider and, ultimately, the Victorian Civil and Administrative Tribunal (VCAT) or the courts. If a provider applies a restrictive practice based on a nomination that is later found to be invalid (e.g. because the nominator lacked capacity, or the witness was conflicted), the provider could face enforcement action under the Act or under the Quality of Care Principles under Commonwealth law. The provider must verify the form’s validity. There is no central registry for these documents; it is a private arrangement. This creates enforcement gaps: who monitors that providers check witness qualifications? Who investigates complaints that a witness was improperly conflicted?

The Regulations do not create any inspection or audit powers. The Act may empower the Aged Care Quality and Safety Commission (Commonwealth) or Victorian bodies to investigate. But the regulations themselves are silent. The sunset clause (10 years) and the endnotes refer to the Subordinate Legislation Act 1994, which requires periodic review. The lack of any penalties in the Regulations suggests that the intended enforcement is through the Act’s substantive provisions and through professional disciplinary bodies for the witnesses.

Economically, the absence of direct penalties in the Regulations reduces the immediate deterrent against sloppy form completion. However, the indirect consequences (invalid nomination, provider liability, professional discipline) act as restraint. The risk of invalidity is the main enforcement mechanism: if a nomination form is flawed, the nominee’s decisions will be legally ineffective, and the provider cannot rely on them. This means that the stakeholder with the most to lose is the aged care provider, because they face regulatory action if they use restrictive practices without valid authorisation. Providers therefore have a strong incentive to audit nomination forms carefully, even though the Regulations do not require them to do so. This is a diffuse burden: all providers must develop internal compliance processes, adding to their costs, which are ultimately passed on to care recipients through higher fees or reduced services.

These Regulations sit within a complex legal web. They are subordinate to the Aged Care Restrictive Practices Substitute Decision-maker Act 2024 (the Act). That Act is the primary source of law for the nomination and revocation scheme. The Regulations only prescribe forms; the Act defines “restrictive practices”, “restrictive practices nominee”, “decision-making capacity”, and the legal effect of a nomination. The interaction is entirely hierarchical: the Regulations are valid only to the extent they are consistent with the Act.

The Regulations also interact with Commonwealth aged care law. The Aged Care Act 1997 (Cth) and the Quality of Care Principles 2014 regulate the use of restrictive practices in Commonwealth-subsidised aged care. They require that restrictive practices be used only as a last resort, in the least restrictive form, and with the consent of the care recipient or a lawful substitute decision-maker. The Victorian Act and these Regulations provide one mechanism for appointing such a substitute decision-maker. However, Commonwealth law also recognises other substitute decision-makers, such as guardians appointed under state guardianship laws, or persons with enduring powers of attorney. There is potential overlap: a care recipient may have both a restrictive practices nominee and a guardian. The Regulations do not address which decision-maker prevails. The Act likely contains a hierarchy, but it is not in these Regulations. Providers must check multiple documents.

Victorian guardianship law under the Guardianship and Administration Act 2019 (Vic) provides for appointed guardians who can make decisions about restrictive practices (e.g. authorising chemical restraint). The restrictive practices nominee is likely a more specific, less formal mechanism. The nomination forms under these Regulations are simpler and do not require VCAT involvement. However, the requirements for capacity and witness attestation are similar to those for an enduring power of attorney. There may be a conflict if both a nominee and a guardian exist. The Regulations are silent.

The form requires the witness to be an “authorised affidavit taker”. This term is defined in the Oaths and Affirmations Act 2018 (Vic) and includes justices of the peace, lawyers, and certain other officials. That Act prescribes the powers and obligations of these persons. The Regulations incorporate that external definition by reference, without repeating it. This is standard legislative technique but means that the qualifications of the witness are not self-contained in the Regulations. A user of the form must know the Oaths and Affirmations Act to determine who can witness. The form itself does not list authorized categories; it leaves a blank for the witness to state their capacity. This could lead to errors if the witness misstates their authority.

The Subordinate Legislation Act 1994 (Vic) applies. The Regulations include an endnote stating that they will sunset on 2 September 2035 (10 years from making). This means the Regulations automatically repeal unless re-made. This introduces long-term uncertainty: if the Act remains in force beyond 2035, new regulations will be needed. The Act itself may not sunset.

The Privacy and Data Protection Act 2014 (Vic) and the Health Records Act 2001 (Vic) may apply to the handling of the forms, as they contain personal and health information (preferences about restrictive practices). The forms do not include a privacy notice. Providers must comply with those laws independently.

The Charter of Human Rights and Responsibilities Act 2006 (Vic) is also relevant. The use of restrictive practices engages rights such as freedom from medical treatment without consent, freedom of movement, and privacy. The Act and Regulations must operate compatibly with the Charter. The nomination form’s requirement for the person to record preferences and values is a means of respecting autonomy, thus promoting charter consistency. However, the form does not include a statement of rights.

There is no interaction with Commonwealth anti-discrimination law evident, but the forms use gender-neutral language (they refer to the person generally).

For practitioners, the key interaction is that these Regulations are not standalone. A valid nomination under these forms is necessary but not sufficient to authorise restrictive practices. The provider must still comply with all Commonwealth requirements, including that the restrictive practice is the least restrictive option, that it is proportionate, and that it is reviewed regularly. The nominee’s consent is only one piece.

The Table of Amendments in the endnotes states: “There are no amendments made to the Aged Care Restrictive Practices Substitute Decision-maker Regulations 2025 by statutory rules, subordinate instruments and Acts.” This is expected given that the Regulations are version 001 and came into force on 10 September 2025, and this output is shortly after that date. The Regulations have not been amended since making.

The making date is 2 September 2025, and commencement date 10 September 2025. There was a 8 day gap, which suggests that the Regulations were published and allowed time for stakeholders to obtain copies before they took effect. There is no transitional provision or savings provision mentioned. The Regulations simply apply from commencement.

The Regulations are expected to remain in their original form for some time. Amendments would likely occur if the Act is amended to change the nomination or revocation process, or if practical experience reveals gaps in the forms. The forms could be updated to include fields for the nominee’s signature, notification of the nominee, or a privacy notice. Any future amendment will be a new statutory rule, which will be noted in the Endnotes of the version displayed on the Victorian legislation website. The sunset date of 2035 means that even if no amendments are made, the Regulations will eventually lapse.

Because there is no amendment history, a practitioner can rely on the current version as the original. However, it is crucial to monitor any subsequent amending regulations, as aged care law is subject to frequent reform.

There is no litigation history for these Regulations. They are too recent (commenced September 2025) and purely procedural. Any challenge to them would likely be on the grounds that they are ultra vires the Act (e.g. if a prescribed form went beyond what section 21 authorises) or that they are unreasonable. No such challenge has been brought. The Regulations do not create rights or duties directly, so they are unlikely to be litigated in their own right. Any litigation would instead involve the Act, and the validity of nominations or revocations made using these forms would be a subsidiary issue. For example, a dispute might arise about whether a witness was an authorised affidavit taker, or whether the nominator had capacity. The forms would be evidence. The court or VCAT would interpret the Act and the Regulations together.

The absence of litigation means there is no judicial guidance on, for example, what “appears to me to have decision-making capacity” actually requires of a witness. This leaves uncertainty. A witness who is a lawyer may apply a higher standard than a lay JP. Until a case is decided, the standard is risk.

Practitioners should note that the forms are “may” forms, so a nomination in a different format could be valid if it complies with the Act. Future litigation might explore whether a departure from the prescribed form invalidates a nomination, or whether the forms are merely a guide. The use of “may” suggests courts would be reluctant to invalidate a nomination solely for deviation from the form, provided the essential statutory requirements are met.

1. Witness conflict prohibition: The witness cannot be a relative or an employee/agent of the approved provider that provides aged care to the person making the nomination. The definition of “relative” is not given in the Regulations. Is a sibling-in-law included? What about a de facto partner? The form does not define it; the Act may. This ambiguity creates risk. A witness could be challenged if later found to be a relative according to some interpretation. Providers should train staff to query witnesses carefully.

2. No nominee acceptance required: The form does not require the nominee to sign or even be aware. A person could nominate someone without their knowledge. If that nominee later refuses to act, the nomination becomes useless, and the provider may have to find another substitute decision-maker. The Act may require the nominee to accept, but the Regulations do not reflect that. Do not assume the nominee will act.

3. No central register: There is no state registry for these nominations. The form is held by the person (or provider). If it is lost, the nomination is unenforceable. The person could revoke and re-execute, but that adds cost. For providers, they must have robust document management. If a person transfers between providers, the form may not follow, leading to gaps.

4. Capacity certification by a non-expert: The witness certifies that the person “appears to me” to have capacity. This is a low bar. If capacity is borderline, the witness may be wrong. A later challenge could invalidate the nomination, leaving the provider exposed. Consider obtaining a medical capacity assessment separately, though the Act may not require it. The form’s certification is not a substitute for professional assessment if the person has fluctuating capacity.

5. Preferences and values field: The person may write “Nil” or something vague. The nominee will then have no guidance. The provider might have to apply to VCAT for guidance if the nominee is uncertain. If the person fills in “no restrictive practices ever”, the nominee is bound by that instruction, even if it later harms the person. The form does not allow the person to delegate decision-making to the nominee’s discretion. The preferences are not binding in the same as a legal instruction? The Act may treat them as binding. Be careful.

6. Revocation not self-executing: If a person revokes a nomination using Form 2 but does not notify the aged care provider, the provider may still accept the old nominee’s consent. The revocation is effective under the Act, but the provider’s ignorance is not the revoker’s problem in law, but in practice it could lead to the old nominee giving consent after revocation. The provider would be relying on a void authority. The Regulations do not require notification. Advise clients to provide copies of the revocation to all relevant providers and to the nominee.

7. Assistance section can be abused: The assistant does not need to be independent. An aged care employee could help the person fill in the preferences and could subtly influence the result. The witness must not be that employee, but the assistant role is unregulated. This is a loophole for undue influence. Families should be involved.

8. **The witness must be an authorised affidavit taker **: Who qualifies? The form leaves a blank for the witness to state their capacity. Some witnesses may misstate their authority. For example, a registered nurse is generally not an authorised affidavit taker unless also a Justice of the Peace. A provider’s staff might mistake a nurse’s ability. Always verify. In rural areas, finding an authorised taker may be inconvenient, delaying the process.

9. No form for updating preferences: If a person wants to change their preferences without revoking the nomination, the Regulations provide no form. They would need to revoke and re-nominate, which is cumbersome. This could discourage updating, leading to outdated preferences. The Act may allow an informal written update, but it is not clear.

10. Sunset: The Regulations expire on 2 September 2035. If the Act is still in force, new regulations will be needed. Providers should plan for that date. If the Regulations are not re-made, the “may” forms would no longer be prescribed, but the Act itself might still allow nominations. The lack of a prescribed form could cause uncertainty, so stakeholders should lobby for re-making in time.

11. Interaction with other advance planning documents: A person may also have an Enduring Power of Attorney (Medical Treatment) or an Advance Care Directive. The restrictive practices nominee may conflict. The Act likely provides a hierarchy, but the Regulations do not mention it. A provider must check all documents to see who has authority to consent to restrictive practices. This adds compliance complexity.

Compliance with these Regulations is straightforward because they only prescribe forms. However, to secure a valid nomination or revocation, follow these steps.

First, determine whether the person (the prospective nominator or revoker) has decision-making capacity at the time. The Regulations do not require a formal assessment, but the witness must certify that the person appears to have capacity. In practice, if there is any doubt (e.g. the person has dementia, mental illness, or is under medication), obtain a medical assessment of capacity from a GP or geriatrician. Document that assessment. The witness should have it before signing. This adds cost but reduces risk of invalidity.

Second, choose a witness who is an authorised affidavit taker. This includes justices of the peace (many of whom offer free services), lawyers, police officers, court registrars, and certain other officials listed in the Oaths and Affirmations Act 2018 (Vic). The witness must not be:

• the nominee (for nomination form)
• a relative of the person making the nomination or revocation (casual relationships count; check the Act’s definition)
• an employee or agent of the approved provider that provides aged care to that person.

If the person is still living at home using a home care package, the provider is the approved provider under the Aged Care Act. The witness must not be an employee of that provider. This may exclude care managers, nurses, or administrative staff of the provider. The person may need to find a witness outside the care team.

Third, fill out the form accurately. For Form 1:

• Name, DOB, address of nominator.
• Name and address of nominee.
• Sign the nomination clause.
• Complete the preferences and values section. Be specific. Instead of “I do not want to be restrained”, say “I do not want to be given sedating medication for agitation, but I accept the use of bed rails if I am at risk of falling while asleep.” If the person cannot articulate preferences, write “Nil” but be aware that gives no guidance. Consider having a family member or advocate help, and record the assistance in the assistance section.
• If someone helps the person complete the form (translation, writing, reading), that person must sign the assistance section and describe the help. This does not require them to be independent, but it is best practice to use a trusted independent person.
• The witness must sign the certificate after watching the person sign (or after the person confirms their signature). The witness fills in their capacity (e.g. “Justice of the Peace”, “Solicitor”). They must be physically present. The Regulations do not allow electronic witnessing (unless the Act permits it via other instruments; check the Act). Current version assumes wet signature.

For Form 2, the process is similar but simpler: no nominee or preferences. The revoker signs, the witness certifies capacity and understanding.

Fourth, store the original signed form securely. Provide copies to the nominee (for Form 1), to the aged care provider, and to the person’s general practitioner or family. There is no requirement to file with any government body. Keep a copy with the person’s advance care planning documents.

Fifth, for aged care providers: establish a policy to request these forms upon admission and to accept copies. Verify the witness’s authority (ask to see their identification as a JP or other taker). Check the witness’s independence. Maintain a register of nominations and revocations. When using restrictive practices, consult the most recent valid nomination form (and any revocation) to identify the current nominee. If a revocation is received, update the register immediately and notify the former nominee that they no longer have authority.

Sixth, monitor expiry of the Regulations and any amendments. The current forms are valid until 2 September 2035. Any new prescribed forms after that date must be used to maintain safe harbour.

Seventh, if the person’s capacity fluctuates, consider making the nomination during a lucid interval and have the witness note the time of day and the person’s demeanour. The witness’s certification is contemporaneous.

Eighth, for lawyers advising clients: go beyond the forms. Discuss the implications of restrictive practices. Help the client articulate preferences. Ensure the nominee is willing and able to act. Check conflict with other appointments. The Regulations do not cover these preconditions, but they are essential for the scheme to work.

Ninth, if any part of the form is missing or incorrectly completed, it may still be valid if it substantially complies with the Act, but to avoid litigation, follow the form exactly. The “may” language provides flexibility, but it is safer to use the prescribed form verbatim.

In summary, compliance is a paper-based process requiring careful witnessing. The Regulations add a compliance burden but clarify the documentary standard. The main risks are witness conflicts, capacity doubts, and failure to notify stakeholders. Address those and the Regulations will have been complied with.