A guardian is a person legally appointed by the Victorian Civil and Administrative Tribunal (VCAT) to make specific lifestyle decisions for another person who, due to disability (including dementia), lacks decision-making capacity for a decision that needs to be made. In cases where there is no-one known to the person who is able and willing to take on this role, the Public Advocate may be appointed as the guardian of last resort. Before this occurs, VCAT must be satisfied that the needs of the person could not be met by other means less restrictive of the person’s freedom of decision and action.
This section was developed in collaboration between a range of expert clinicians from Victorian health services, and representatives from the Victorian Department of Health (DH VIC), the Office of the Public Advocate (OPA), VCAT and researchers from the National Ageing Research Institute (NARI). It explores the concept of least restrictive practice in the context of discharge planning for older people in hospital who have complex needs. It also outlines the importance of having supportive decision making in place for people who require support to make decisions, as well as the types of supportive and substitute decision makers in Victoria.
Discharge planning requires comprehensive assessment of each patient’s unique values, preferences, strengths and risks. This is particularly important when the treating team expects an older person’s care requirements will be quite substantial after discharge. In some cases the team may consider it is not possible or in the patient’s best interest to discharge them to the accommodation they were in prior to admission. This can be very distressing for the older person and their family, and they may disagree, especially in cases where (the team believes) a person’s cognitive impairment is impacting on their ability to understand the consequences of their decision. These situations can also be very challenging for staff involved in the person’s care, and it is essential that each staff member plays a key role in identifying, trialling and documenting least restrictive alternatives to the appointment of a guardian (if feasible).
This resource is intended as general guidance only. Give due consideration to whether or not the advice should be followed in each individual situation. It is not a substitute for individual health services seeking their own independent legal advice. In addition to following policy and procedures specific to your health service, it is important to familiarise yourself with the information outlined on the websites of and , consider the recommended actions and discuss them with colleagues and managers.
Reviewed 25 July 2024