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 Department of Health and Human Services, the Office of the Public Advocate, the Victorian Civil and Administrative Tribunal and researchers from the National Ageing Research Institute. 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 current legal context of substitute decision making in Victoria, the role that each organisation plays in the process of applying for a guardian of last resort, and the types of orders that can be made.

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 the Office of the Public Advocate and VCAT, consider the recommended actions and discuss them with colleagues and managers.

All Australian hospitals undergo accreditation according to The Australian Commission on Safety and Quality in Healthcare’s (ACSQHC) National Safety and Quality Health Service (NSQHS) Standards. Each of the ten standards relate to optimising clinical care and better outcomes for all patients. While guardianship issues are not directly referred to within the NSQHSS, this topic highlights the need to partner with consumers (standard 2) and the need to work to improve care for patients with cognitive decline (delirium clinical care standard and a better way to care campaign). It remains the responsibility of individual health services to ensure they meet the standards of accreditation.