Aged and disability care law in Victoria 

This article is a wayfinding guide. It states the law of Victoria, and identifies where Commonwealth law governs instead. It adds no authority of its own: every proposition here is drawn from the linked articles on each Victorian statute, and the pinpoints in this article's citations are the ones verified there.

Victoria has rebuilt this area more thoroughly than any other jurisdiction. Its guardianship, medical treatment and powers of attorney statutes were all remade between 2014 and 2019 around a single idea — will and preferences rather than best interests — and in 2021 it added a general social services regulator that no other State has. A Victorian answer that reads like a New South Wales answer is almost certainly wrong.

Commonwealth or State?

The Commonwealth funds and regulates the service under the Aged Care Act 2024 (Cth) and the National Disability Insurance Scheme Act 2013 (Cth): registration, quality standards, reportable incidents, worker screening obligations under those schemes, and income support.⁹⁸

Victoria governs capacity, consent, restrictive practices, complaints — and, uniquely, the general registration of social service providers. The last of those is the feature to watch: Victoria regulates providers as well, and the two registration systems coexist.

The seven statutes, and what each answers

| The question | The Act | The decision-maker | |---|---|---| | Can this adult decide, and who decides if not? | Guardianship and Administration Act 2019 (Vic) | VCAT | | What did this person decide in advance about treatment?³ | Medical Treatment Planning and Decisions Act 2016 (Vic) | The medical treatment decision maker; VCAT | | Who deals with property and money, and who merely supports?⁴ | Powers of Attorney Act 2014 (Vic) | The attorney or supportive attorney; VCAT | | May this restrictive practice be used?⁵ | Disability Act 2006 (Vic) | Authorised Program Officer; Senior Practitioner | | Is this provider registered, and to what standards?⁶ | Social Services Regulation Act 2021 (Vic) | The Social Services Regulator | | Who hears a complaint about a health service?⁷ | Health Complaints Act 2016 (Vic) | The provider first; then the Commissioner | | Does this unpaid carer have recognised standing?¹ | Carers Recognition Act 2012 (Vic) | Care support organisations |

Capacity: will and preferences

The Guardianship and Administration Act 2019 (Vic) is the modern model.² Section 9 sets decision-making principles directed by the person's will and preferences, and s 8(1)(b) works with them.

Section 30 is the operative provision and it is strict. VCAT may make a guardianship or administration order only where the person does not have capacity for the particular matter — capacity is assessed matter by matter, not globally — and where the order will promote the person's personal and social wellbeing. Both limbs must be satisfied.

The Act also provides for supportive orders, which do not transfer decision-making authority at all. Reaching for a guardianship order without addressing whether a supportive order would do is a failure to engage with s 30.

Advance treatment decisions: two kinds of directive

The Medical Treatment Planning and Decisions Act 2016 (Vic) is the clearest statutory scheme in Australia on advance care planning, because it divides the directive in two.

Section 12 distinguishes an instructional directive — a statement of a decision that takes effect as if the person had consented or refused — from a values directive, a statement of the person's preferences and values that guides rather than binds. Section 61 then requires a health practitioner to give effect to a relevant instructional directive.

Sections 60 and 61 impose a substituted judgment standard on the medical treatment decision maker: the decision is what the person would have wanted, not what is objectively best for them. That is the same idea as the Northern Territory's advance personal planning scheme and the opposite of New South Wales's welfare-and-interests standard.

The practical consequence in an exam or in advice: read the directive and classify it before asking what it requires. A values directive that is treated as binding, or an instructional directive that is treated as merely indicative, is the standard error.

Powers of attorney, and the supportive attorney

The Powers of Attorney Act 2014 (Vic) states least-restrictive and participation principles in s 21 for anyone acting under an enduring power.

Its innovation is in ss 85 to 87: the supportive attorney appointment. A supportive attorney may access information, communicate the principal's decisions and give effect to them — but the decision remains the principal's. This is supported decision-making given statutory form, and it sits below both an enduring power and a VCAT order in restrictiveness.

Victoria therefore offers a graduated set of responses: supportive attorney, enduring attorney, supportive order, guardianship or administration order. Advice that jumps to the last of these without considering the others has not applied Victorian law.

Restrictive practices

The Disability Act 2006 (Vic) supplies the authorisation that the Commonwealth National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 require.¹⁰ Section 135 prohibits the use of a regulated restrictive practice without authorisation, and s 136 sets the requirements: authorisation by an Authorised Program Officer, and for specified forms of practice, approval by the Senior Practitioner. Section 143 governs the Senior Practitioner's role.

The two-step structure — officer authorisation, plus Senior Practitioner approval for the more intrusive practices — distinguishes Victoria from South Australia, where the split is between an Authorised Program Officer and a Senior Authorising Officer, and from the ACT, where the Senior Practitioner registers plans.

The Social Services Regulator

The Social Services Regulation Act 2021 (Vic) has no equivalent elsewhere. Section 1 states its purposes; s 7 and s 8 establish the Social Services Regulator, provide for registration of social service providers, require compliance with the Social Services Standards, and establish a worker and carer exclusion scheme.

For a problem question, this means a Victorian provider may face two registration regimes at once — Commonwealth registration under the NDIS or aged care schemes, and Victorian registration under this Act — with two sets of standards and two regulators. Identify both before advising on a provider's obligations.

Complaints, and carers

The Health Complaints Act 2016 (Vic) sets a two-tier structure. Section 5 and s 6 provide that a complaint is ordinarily made to the health service provider first, with defined routes permitting a complaint directly to the Commissioner. This differs from the single-destination models elsewhere, and advising a client to go straight to the Commissioner without identifying the applicable route is wrong more often than it is right.

The Carers Recognition Act 2012 (Vic) defines a care relationship in s 4 by reference to either party and four grounds of need — a two-sided definition, unusual in this family — and states principles in ss 6 and 7 for carers and for the persons being cared for. Section 8 subordinates the Act to any inconsistent Act, which is a plain signal about its force.

A working order for a Victorian problem

1. Split the jurisdiction, and check whether Victorian provider registration under the 2021 Act is also engaged.
2. Assess capacity for the particular matter, not generally, and apply the will and preferences principles in s 9.
3. Work up the ladder of restrictiveness: supportive attorney, enduring attorney, supportive order, then a VCAT order under s 30.
4. Classify any advance care directive as instructional or values-based before asking what it requires.
5. Apply substituted judgment to a medical treatment decision maker's decision, not best interests.
6. For a restrictive practice, identify both the Authorised Program Officer authorisation and whether Senior Practitioner approval is required.
7. For a complaint, establish whether the direct-to-Commissioner route is available before bypassing the provider.

Self-check

• Have I used will and preferences, and not best interests or welfare and interests?
• Have I addressed both limbs of s 30 — absence of capacity for the matter, and promotion of personal and social wellbeing?
• Have I considered a supportive attorney or supportive order before a guardianship order?
• Have I classified the directive before applying it?
• Have I checked whether the provider is registered under the Social Services Regulation Act 2021 as well as federally?