Who decides about aged care when a parent can no longer decide

Capacity is presumed, one decision at a time

The starting point under the new Aged Care Act, and under state law, is that every adult can make their own decisions. My Aged Care calls this the presumption of capacity. Aged care providers, health professionals, carers and registered supporters must assume a person can make each new decision, even if someone had to decide for them in the past.

Capacity is about a particular decision at a particular time. As the Victorian Department of Health summarises the Guardianship and Administration Act 2019, a person has capacity for a decision if they can:

• understand the information relevant to the decision and its effect
• retain that information long enough to make the decision
• use or weigh the information as part of deciding
• communicate the decision in some way, including by speech, gestures or other means.

A person may be able to choose what to eat and who visits, but not weigh up a contract. Capacity can also vary through the day. Support such as extra time, an interpreter or a communication aid is often enough for a person to make the decision themselves.

Families do not decide whether a parent has capacity. If it is in doubt for a big decision, ask the GP or, in hospital, the treating team. The Victorian Department of Health says formal capacity assessments should be done by experienced clinicians such as geriatricians and neuropsychologists.

Source: My Aged Care: appointed decision-makers

Supported decision-making and registered supporters

Most older people who need help with decisions need support, not someone deciding for them. Supported decision-making means giving a person information in a way they understand, at a time that suits them, and helping them communicate what they decide.

Under the new Aged Care Act, an older person can name people as registered supporters with My Aged Care (the Australian Government's aged care service, 1800 200 422). A registered supporter can:

• communicate the person's wishes to My Aged Care, assessors, aged care providers and other organisations
• support the person to make decisions, including about assessments, referrals and everyday aged care decisions
• request, access and receive information about the person, including updating the details My Aged Care holds.

What a registered supporter cannot do

In My Aged Care's words, becoming a registered supporter "does not provide a person with decision-making authority". The supporter must act on the person's will and preferences, support them only as much as needed and never pressure them. The older person can still deal with providers and My Aged Care directly, and can have more than one registered supporter.

How to register

Most supporter relationships are registered with the consent of both people, and then no legal or medical documents are needed. You can call My Aged Care together, fill in the online form together and sign it electronically, use the Support networks section of the person's My Aged Care Online Account, ask the assessor at the aged care needs assessment, or see an Aged Care Specialist Officer at Services Australia (book on 1800 227 475). Both people need their Medicare details.

Support roles under Victorian law

Victoria also recognises a supportive attorney, a support person for medical treatment decisions, and a supportive guardian or supportive administrator appointed by VCAT. They help a person make and act on their own decisions. They do not decide for them.

Source: My Aged Care: registering a supporter

Appointed decision-makers: who can decide for someone

When a person cannot make a decision even with support, someone with legal authority may make it for them. My Aged Care calls this person an appointed decision-maker. There are two ways to get one:

• Chosen by the person while they still had capacity, in an enduring document such as an enduring power of attorney, an appointment of enduring guardian or, in the Northern Territory, an Advance Personal Plan.
• Appointed by a tribunal or court as a guardian (lifestyle and health decisions) or an administrator (money and property), when no suitable document was made.

An appointed decision-maker can only make the kinds of decisions their authority covers, and only once it is active. My Aged Care's example: someone with authority over money only cannot make lifestyle decisions. Many personal and health powers start only when the person has lost capacity for that decision, which is why a doctor's letter is sometimes needed.

My Aged Care says appointments are "usually recognised Australia wide", but some restrictions apply, so check documents made in another state. For health wishes, see advance care directives.

Registering an appointed decision-maker with My Aged Care

An active appointed decision-maker can be registered as a supporter without the older person's consent. My Aged Care needs proof of the authority (usually the legal document) and, if the authority starts only when capacity is lost, medical evidence such as a letter from the person's doctor about their capacity for those decisions. My Aged Care cannot give anyone decision-making power, and cannot change or remove an appointed decision-maker's powers.

The older person should still be included in decisions as far as they can be. And an aged care provider cannot exclude a person from services just because they have no enduring power of attorney or guardian.

Source: My Aged Care: appointed decision-makers

When nothing is in place: guardianship and administration

If a decision needs to be made, the person can no longer make it, and there is no attorney or guardian, a family member or anyone concerned for their welfare can apply to the tribunal in the state or territory where the person lives. The tribunal holds a hearing and can appoint:

• a guardian for lifestyle and health decisions, such as where the person lives, the services they receive and medical treatment
• an administrator for money and property (called a financial manager in New South Wales and a manager in the ACT).

Family members and friends are often appointed. Where nobody suitable is willing and able, the state's public advocate, public guardian or public trustee can be appointed as a last resort.

Tribunals need evidence. In Victoria, the medical report must describe the disability, how it was diagnosed and how it affects the person's ability to make the decision. Before appointing a guardian, a VCAT member must be satisfied that the person has a disability affecting their ability to decide, that a decision needs to be made, and that less restrictive options have been explored. Orders are usually limited to the decisions that need making, and they are reassessed.

Urgent situations

My Aged Care notes that some states and territories have emergency options to appoint a decision-maker quickly. In Victoria, VCAT can make a short-term urgent order if there is an immediate risk of harm to someone's health, welfare or property, and the Office of the Public Advocate gives advice on urgent orders at any time on 1300 309 337.

Source: VCAT: appoint a guardian or administrator

Moving into an aged care home without the person's agreement

Many families assume the next of kin decides. That is not the law. The Victorian Department of Health warns hospital staff that many people wrongly assume the next of kin automatically has authority to decide, and tells them to ask to see and copy any legal documents.

If the person can make the decision

The decision is theirs, even when family and doctors disagree, and it must be respected. The family's job is to give information, time and support, and to keep talking. An aged care needs assessment through My Aged Care, a short stay in respite care or more help at home can all be tried without anyone giving up the right to choose.

If the person cannot make the decision

The decision belongs to whoever holds legal authority over where they live: an attorney for personal or lifestyle matters, an enduring guardian, or a tribunal-appointed guardian, depending on the state. In Victoria, the Department of Health says that for financial or lifestyle matters the person's enduring power of attorney is their substitute decision maker, and for medical treatment it is their medical treatment decision maker.

Victoria's medical treatment list (an appointed medical treatment decision maker, then a VCAT guardian, then the first available of the person's spouse or partner, primary carer, oldest adult child, oldest parent and oldest adult sibling) covers medical treatment only. Being the eldest child does not give authority to choose an aged care home.

If there is no attorney or guardian and the person and family agree with the treating team's recommendation, the Victorian guidance says a formal capacity assessment and a VCAT application may be avoidable. If the person or family disagrees, and less restrictive options have been explored, a formal capacity assessment follows and a guardianship application may be needed.

In New South Wales, NCAT can give a guardian what it calls the "coercive accommodation function", a very powerful order that lets a guardian have the person taken to a place and, if necessary, kept there for their safety. Only the tribunal can make it, after a hearing.

Source: Victorian Department of Health: decision making for older people

When the question comes up in hospital

Many of these decisions surface in hospital, when the treating team believes a person can no longer go home safely. In Victoria, the Department of Health's guidance for hospital staff sets out the usual steps:

1. The team asks whether the person has appointed anyone, such as an attorney, a medical treatment decision maker or a supportive attorney, and asks to see the documents.
2. The team works with the person and family to understand what matters to them and to try less restrictive options, such as more services at home, assistive equipment or an occupational therapy home visit.
3. If the person cannot make the decision and there is disagreement, a formal capacity assessment is done.
4. If a guardian is needed, the hospital (often a social worker) applies to VCAT. The guidance says applications must be heard within 30 days of VCAT receiving them, and VCAT can make temporary orders when a risk cannot be managed.
5. If no family member is eligible to be guardian, VCAT appoints the Public Advocate as guardian of last resort. While a guardian is being allocated, the Office of the Public Advocate may make interim decisions, such as consenting to a move to the Transition Care Program.

The applicant must give a copy of the application to the person and to other interested parties, which can include family and carers. Hearings can be held at the hospital, at VCAT or by phone or video. If you hold an appointment, bring a certified copy to every meeting.

If a hospital is pressing for a discharge date, see urgent aged care and hospital discharge and our guide to aged care waiting times.

Source: Victorian Department of Health: application for guardianship

Restrictive practices need consent from the right person

A restrictive practice is any action that restricts an older person's rights or freedom of movement. There are five types: chemical, environmental, mechanical and physical restraint, and seclusion. In residential aged care they may only be used as a last resort to prevent harm, after other strategies have been tried, and with informed consent.

If the resident cannot consent, consent must come from their restrictive practices substitute decision-maker. Who that is depends on the guardianship and consent laws of the state or territory where the person receives care. For example, a New South Wales enduring guardian can consent to restrictive practices only if the appointment specifically authorises it.

The Aged Care Rules 2025 add a fallback hierarchy. It is used only when state or territory law gives no way to appoint a restrictive practices substitute decision-maker, or when a tribunal application has been made but not yet decided.

When an enduring guardianship or power of attorney is being drawn up, it is worth asking the lawyer or public advocate whether it needs to mention restrictive practices in that state. More in our guide to restrictive practices in aged care.

Source: Department of Health, Disability and Ageing: restrictive practices in aged care, a last resort

Where to get advice

This guide is general information, not legal advice. For a particular situation:

• Public advocates and public guardians (listed in the table above) give information about guardianship, powers of attorney and decision-making in their state. In Victoria, the Office of the Public Advocate Advice Service is on 1300 309 337.
• Legal Aid in each state, community legal centres and private lawyers can advise on documents, disputes and tribunal applications.
• The Older Persons Advocacy Network (OPAN) gives free, confidential advocacy about aged care rights on 1800 700 600.
• My Aged Care (1800 200 422) can give information about registered supporters and about state and territory decision-making arrangements.
• Dementia Australia's National Dementia Helpline is on 1800 100 500, 24 hours a day.
• The Elder Abuse Phone Line is on 1800 353 374.

If a parent still has capacity, the most useful thing a family can do is help them make their own enduring documents now, while they can. See enduring power of attorney, state by state.

Source: Department of Health, Disability and Ageing: supported decision-making under the new Aged Care Act