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Appointing a restrictive practices decision-maker has become a new pillar of estate planning in Victoria, writes Pamela Nasiakos.
Australia’s ageing population means more people are, and will be, in need of residential aged care. In June 2024, approximately 190,000 people aged 65 and over lived in permanent residential aged care, up from 179,000 in June 2017, according to Australian Institute of Health and Welfare figures.
With more people entering residential aged care, families are increasingly looking for guidance on practical issues such as accessing the residential aged care system and the implications for estate planning.
In Victoria, recent legislation affecting decision making and consent processes in aged-care settings adds another layer of complexity to the conversation. Understanding how these rules work and where they fit alongside existing arrangements is essential to helping clients plan with confidence.
What has changed?
The Aged Care Restrictive Practices Substitute Decision-maker Act 2024 came into force in July 2025 in response to recommendations in the Royal Commission into Aged Care Quality and Safety concerning autonomy and resident rights. It currently applies only in Victoria.
The legislation creates a formal consent framework that allows an adult (with decision-making capacity) who is in or entering aged care to nominate another eligible adult in advance to be their restrictive practices substitute decision-maker (RPSD). The RPSD can provide informed consent for the use of restrictive practices in residential aged care.
Restrictive practices include measures that restrict the resident’s rights, freedom, or movement. This might include chemical, physical, mechanical, or environmental restraint, or seclusion. These measures can only be used as a last resort, for the shortest time needed, and with the intention to prevent harm to the older person or others.
They might, for example, be needed to prevent someone who is in acute distress from acting aggressively and in danger of harming themselves or others, or to stop a resident from exiting a care facility alone and wandering into an unsafe area. When medications are prescribed with the primary purpose to influence, moderate, or control behaviour of a resident in a residential care facility, this is also considered a restrictive practice.
Importantly, in addition to safeguards already in place, the legislation requires that the restraint must be clinically necessary, and the method chosen must be the least restrictive option. The restrictive practice must also be reviewed regularly and must uphold the human rights and dignity of the care resident.
In Victoria, restrictive practices are not considered to be a form of medical treatment. Because restrictive practices are legally distinct from medical care, standard medical treatment decision-makers cannot automatically consent to restrictive practices in residential aged care.
Legislation with good intentions
The legislation aims to fill gaps that may not be covered by powers of attorney, medical treatment decision-makers, or guardianship arrangements.
It is intended to protect vulnerable care residents from inappropriate or unconsented restrictive practices, while providing certainty for aged-care providers in situations where restrictive practices are deemed clinically necessary.
With this new legislation, some aged-care providers in Victoria are now requesting prospective residents complete the documentation appointing an RPSD before admission.
The role of advisers
Advisers working with clients on estate planning matters in Victoria should familiarise themselves with the details of the legislation and consider how it might impact their clients as they age and need extra support.
When assisting clients to plan for the future, along with appointments of medical substitute decision-makers, and enduring powers of attorney, completion of RPSD documentation should also be recommended. Given the transition into residential aged care can be complex, planning well in advance can make it less stressful for families and aged-care providers, especially if restrictive practices are needed.
If there is no RPSD appointed, it would fall back to existing processes to appoint an appropriate family member or carer to make the decision. Sometimes it may be necessary for the Victorian Civil and Administrative Tribunal (VCAT) to make an appointment, if there is no eligible relative or carer available to provide the consent. This is less than ideal, given VCAT processes can be lengthy, and restrictive practice decisions often need to be made quickly. There are some situations where clinicians can enact emergency restrictive practices, but these are in specific scenarios only.
In February this year, VCAT provided some clarification on guardianship and provider permissions, but further guidance will come from future cases. Unfortunately, tribunal delays and resource constraints mean there will likely be uncertainty for some time to come.
Challenges in getting advice
While the act is intended to protect residents’ rights, autonomy, and dignity, getting the right advice on how to appoint an RPSD can be challenging, as the legislation is new, niche, and difficult to implement in practice.
Across all stakeholder groups, there is still significant uncertainty about how it works, how it interacts with existing estate planning documents, and who should advise families when medical, legal, and care responsibilities overlap.
Many legal practitioners are still unaware of the legislation, and very few have actively implemented it. Legal practitioners also lack the medical background to confidently advise clients on what’s appropriate, meaning legal and healthcare professionals will need to collaborate when preparing documentation.
Clear cross-sector coordination – between legal, medical, and aged-care stakeholders – will be needed to iron out these issues. In the meantime, advisers supporting clients through these difficult decisions can look to estate planning specialists such as Equity Trustees for expert assistance.
The restrictive practices decision-maker legislation has good intentions, but practical implementation issues still need to be resolved.
For advisers working with clients in Victoria, the legislation is a reminder that estate planning must account not only for wealth transfer, but also for the practical, personal, medical and legal decisions clients may face as they age. Collaboration with specialist estate planning, legal and aged-care professionals will be essential in helping to ensure clients’ wishes, rights, and dignity are protected when they may be most vulnerable.
Pamela Nasiakos is legal counsel with Equity Trustees.
