From 1 July 2025, a new law will come into effect in Victoria that may impact how your wishes are carried out if you enter aged care and lose decision-making capacity.
The Aged Care Restrictive Practices Substitute Decision-Maker Act 2024 (Vic) introduces a legal pathway for authorising certain types of restrictive care interventions—like physical restraints or seclusion—that might be used in aged care settings. While the law aims to protect vulnerable individuals, it also means that you may need to appoint yet another type of decision-maker—separate from those already included in your estate planning documents.
For clients thinking about future care or reviewing their estate plans, this is an important new piece of legislation to consider.
A new layer in incapacity planning
You may already have documents in place—such as a Medical Treatment Decision Maker appointment or an Enduring Power of Attorney—that outline who can act for you if you become unable to make decisions for yourself. However, these documents do not cover decisions about the use of “restrictive practices”, which include:
- Physical restraints (like bed rails)
- Chemical restraints (like sedation used to control behaviour)
- Environmental restraints (such as locked areas in care facilities)
- Seclusion (isolating someone to prevent harm)
Until now, there has been no clear way under Victorian law for someone to give consent on your behalf for these measures. The new Act fills that gap—but it also means that your estate plan may need updating to reflect this added area of consent.
What this law allows you to do
Under the new Act, you can now nominate a Restrictive Practices Substitute Decision-Maker—a trusted person who can consent to the use of these practices if they are ever required. This person must meet specific eligibility criteria and be formally appointed before you lose capacity. If you don’t appoint someone, the law provides a default list (starting with your spouse, then children, parents, or siblings), or the Victorian Civil and Administrative Tribunal (VCAT) may need to step in.
Why act now? Because once you lose capacity, you can no longer make the nomination. Acting early gives you control over who can make these sensitive decisions on your behalf in the event that they are ever required.
It’s better to have it and not need it than to need it and not have it!
What clients need to know
As we approach the law’s commencement date on 1 July 2025, here’s what you can do now to make sure your estate plan is complete:
- Review your existing planning documents
Check whether your current Power of Attorney or Medical Treatment Decision Maker appointments are up to date. These documents still serve crucial roles but do not extend to restrictive practices. - Consider nominating a restrictive practices decision-maker
Think about who you trust to make decisions if restrictive practices ever become necessary in your care. We can help you complete the formal nomination process, so your wishes are clear and legally recognised - Talk to your lawyer about values-based planning
Your beliefs and preferences can be formally documented under this new law—helping guide your decision-maker or, if necessary, VCAT. Including a narrative statement can ensure your values are respected, even when you’re no longer able to speak for yourself. - Be prepared for tribunal involvement if no appointment is made
If no one is appointed and a decision must be made, VCAT can authorise someone to act or give consent directly. This may lead to delays or outcomes that don’t fully align with your preferences—another reason early planning is important.
In summary: a new planning tool for aged care
The introduction of this legislation marks an important development in aged care and incapacity planning. While it adds a new layer to an already complex area, it also gives you more control over your future care—but only if you act in advance.
At KKI Lawyers, we’re ready to help you understand what this change means for your personal situation. By taking a proactive approach now, you can ensure your estate plan covers all areas of decision-making, including those that arise in the most vulnerable stages of life.
If you’re updating your estate plan or considering aged care options, contact Lisa Berte to discuss whether appointing a Restrictive Practices Substitute Decision-Maker is right for you.
