NDIA Accountability Project

Submission to Inquiry into supported decision-making

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Submission No 13

SUPPORTED DECISION-MAKING IN NSW

Organisation: MJP Collab Pty Limited

Date Received: 11 March 2026

Partially Confidential

Introduction:

This submission is focused on some practical challenges that exist to the implementation of supported decision making in New South Wales and proposes steps that can be taken to resolve these challenges:

  1. Insufficient training in professionals and service providers to objectively identify the field of competent decision making that may be asserted by an individual, once it is no longer appropriate to assume they have unrestricted mental capacity. We propose recognition of the professional field of estate practice (including elder law)1_by the Government, which can foster the development of professionals skilled in practising the ethics of care when dealing with the personal interests of development of ageing, older and disabled Australians.
  2. Insufficient training in cognitive responsive client or customer interviewing that serves to provide evidence of the decision-making ability of a person in the course of interactions with a professional or commercial service provider. We propose standardised training and attach to this submission a draft resource that can be used to support such training, which can be administered through partnering with appropriate educational and professional body partners, such as STEP.
  3. Professional and commercial business models that do not facilitate the practice of the ethics of care in the programmed delivery of multiple professional disciplinary services through a managed process that meets the estate administration and succession needs of citizens. We propose a collaborative, work-based business structure that can pilot scalable cognitive, responsive, and ethics-of-care-based services supported by affiliated professionals in both private practice and public institutions. A detailed description of this hybrid business model is attached to this submission. Evaluation of the business structures through which they model is deployed is open for discussion, depending on the scale of the initial project agreed and the extent of services to be delivered. It is intended that this pilot program: a. Implements a hybrid business structure and operational model that is formed from either an incorporated legal practice or a limited trustee licence under the Corporation Act, which is in turn placed in charitable or public ownership, through which other pro bono services can be funded by the profitable operation of the Firm. b. Implements the Ethics of Care as its foundation modality of practice, and c. Establishes the purpose and role of the family fiduciary decision maker function and family fiduciary advisor as part of the operational responsibility of trustees, attorneys, guardians, carers and supporters active around the interests of a person as rthey age.

1 This is proposed to be part of the professional competence of a trust and estate practitioner recognised by the Society of Trust and Estate Practitioners ) STEP and be recognized as the senior professional designation in dealing with the decision support and care of ageing, older and disabled Australians.

Executive Summary

The knowledge, skill and experience of the author is summarised in the resumes included with this submission.

In their experience, many clients do not have the knowledge, skill and experience to understand how the prudent operation of an Executor, Attorney, Trustee or other alternate decision maker should occur. This leads to personal representatives or professionals serving the person, in the absence of that knowledge making decisions not in accordance with the will and preference or best interest person.

There is insufficient recognition of the defensible decision-making ability of a person as the pivot point on which the competing tasks of defending a person’s will and preference or acting only in accordance with the decision-maker’s understanding of the interest of a person are balanced.

Better systems and processes are needed in society to deal with this challenge. The starting point, however, is to improve professional practices in dealing with the will and preference of people and encouraging citizens to be active advocates of their own best interests.

The systemic bias of the law is to react only to a failure of decision-making rather than to support people in making prudent decisions on the firm’s behalf.

Functional specialisation in the professions and a focus in Government on commercial rather than professional supports for people as they age have resulted in a skills and service gap in dealing with citizens’ personal decision-making, care, and succession planning.

Estate Planning is an established professional consultation discipline that can be applied to support relational and ethics of care-based practice models that inherently keep the person concerned at the centre of decision-making about their affairs. Functional specialisation in the professions results in many practitioners focusing on the delivery of documentary outputs to their clients rather than establishing, through the documents delivered, an improved method for the administration of their affairs.

The practical necessity is that an advisory or decision-maker role needs to be established primarily, focused on protecting a person’s will and preferences, and improving the administration process for their affairs. Great mischief and damage can occur when an advisor or decision maker for a person adopts a best-interest-based approach to their role without responding to the defensible expression of a person’s will and preferences.

Compelling representatives, supporters and carers to understands the defensible scope of a person’s expression of their will and preference needs to be established as a broad obligation for those interacting with the ageing, older, disabled and vulnerable in. our society/ This needs to occur initially through professional education that establishes relational practice as pat of the professional competence of professionals and service providers interacting with the ageing, older, disabled and vulnerable in our society. For more details about this proposal, see attachments 1 and 2 to this submission.

This can be done through a legislative, professional, and community-based initiative that expands the role of current representatives to function appropriately, in accordance with a person’s will and preferences, or, if necessary, in accordance with their best interests. This

requires a fresh professional practice to be established that is tuned to delivering these outcomes. For more details about this proposal, see attachment 3 to this submission.

The current focus of law in NSW on substitute decision-making is inappropriate to the needs of the community.

Supported Decision. Making (SDM) needs to be defined in law and implemented in New South Wales as:

  1. An incident of working with professionals
  2. A method of protecting the implementation of a person’s will and preference.
  3. An acknowledged and permitted method of operation of Attorneys, Guardians, Carers and Supporters of a person
  4. A cognitive responsive process for managing personal interactions that can respond to the risk of a person being affected by disability
  5. A method to ground the defensible decision-making of a person who is affected by vulnerability or disability.
  6. A means to promote the participation and inclusion of all persons in the civil society of New South Wales.
  7. A means to expand our workforce with a cohort of people able to respond to the will and preference and best interests of a person.

SDM still requires a competent decision maker to be engaged in the task or outcome concerned. Broad community education is needed to help all people recognise the behaviour consistent with competent decision-making. The mere statements of a preference or outcome cannot be accepted as evidence of competent decision-making by any person.

Responding to the Terms of Reference

  1. the lived experience of people seeking to access appropriate support to make decisions for themselves

    a) Michael Perkins – commentary

     i)  I have been a private client lawyer serving the needs of families across generations for over 40 years. In this time I have seen the usage of personal estate planning instruments such as wills, power of attorney and guardianship move from being considered administrative firms prudent to establish without oarticular thought about how the power created is to be used toa current practice where holding personal representatives, family and supporters to the will and preference or best interest oif a person is of broad community concern.

 ii) I am now observing that, commonly, in my practice, clients are not able to explain to me how their current representation documents operate. In discussion, concerns about how they are to be cared for in conjunction with their representatib=ves emerges. This has resulted in my practice being called on frequently to support our clients in the lifetime administration of their affairs.

iii) In the course of this work, it is necessary for me to educate clients about how they can hold their representatives to account, and event before accountability becomes an issue, to simply ground the representatives’ understanding of their role in a commonly held values, principles of operation and purpose of the representation, with the donor of the power.

    iv) Where possible, this is delivered in joint meetings with the donor and representatives as the representation document is activated.

    v)  The practice of merely providing representation documents in. standard form without consideration of the needs of the donor should be discouraged.

    vi) Michael is happy to speak in confidence to particular relevant cases if desired.

2) barriers to implementing models for supported decision-making across legal, financial, health, education, employment and care systems in NSW a) There needs to be a consistent definition of the means of delivering supported decision-making across these professional service cohorts. b) The limitation in the definition of t=supported decision making in the Commonwealth Aged Care Act 20252 needs to be recognised. Merely defining the decisions with which a person may need to make decisions does nothing to establish consistent means to provide that support. c) Supported decision making has multiple meanings and modalities of delivery. d) Supported decision-making is in many contexts a current mode of delivery of the professional’s role. This needs to be recognised and the value of the professional promoted to the community.

  1. the distinct experiences of and challenges faced by Aboriginal people and people from culturally and linguistically diverse backgrounds a) Not within the current practice of Michael Perkins

  2. the role and functions of the Ageing and Disability Commission (the Commission) in relation to supported decision-making. possible changes to the functions of the Commission, including legislative amendments to the Act, to enhance supported decision-making a) The Commission needs to have active relationships with accredited professionals who can help representat or other not-for-profit or pro bono community service providers ives and donors to make better decisions in the first place and mitigate the mischief of poor knowledge about the proper exercise of representative functions in the community. b) Because of the functional specialisation of the professions, the Commission should be empowered to recognise the multidisciplinary nature of elder law and estate professionals and work with education and service providers to improve the workforce.

2 https://www.health.gov.au/our-work/aged-care-act

c) To establish a Public Advocate function that includes the role to provide decision support functions in the decision-making community service organisations such as Community Legal Centres or other not-for-profit or pro bono community service providers.. d) Recognise the need for current attorneys and Guardians to have an improved understanding of their role and access to decision support services as needed. This would complement the dispute-resolution functions of the Supreme Court and the NSW Civil and Administrative Tribunal.

  1. measures to ensure that substitute decision-making is an alternative approach that is employed in appropriate and limited circumstances a) By recognising it as a valid mode of operation for legal personal representatives, carers and supporters.
  2. other related matters.

Recommendations:

Include specific recommendations or proposed actions that the parliamentary inquiry should consider. These recommendations should be practical, evidence-based, and directly related to the issues raised in the submission.

  1. Recognition of cultural, social and education-based limits creating social disability of citizens to which social compact, legislative and regulatory responses are needed.
  2. Rejection of the Victorian model of a supported decision maker as a representative choice rather than a functional responsibility of personal, legal and medical decision makers.
  3. Recognition of supported decision making as a method of providing guardrails around the decision-making ability of vulnerable decision makers, including the ageing, older and disabled members of society.
  4. Recognition of supported decision making as a normal and appropriate method for personal representatives, such as attorneys and guardians, to facilitate a person’s will and preference or the protection of their best interest.
  5. The adoption of a person-centred concept of supported decision making rather than as an alternate or supplemental form of legal personal representation.
  6. Recognition of the difficulty of policing guardrails for decision making and the use of community leaders and service providers to help develop the concept of families as self-supporting systems for care delivery. An ideal implicit in current legislation and regulation.
  7. Recognition of the limits of transactional professional practices in responding to the complex decisions emerging in dealing with the ageing, disability prevalence and civic participation of citizens.
  8. Recognition of relational, collaborative working and multi-disciplinary models of practice and the need to support the formation and operation of professional practices that implement these attributes and have an enhanced ability to deliver supported decision-making-based services.
  9. Support for the establishment of a funded not-for-profit professional practice that implements the attributes set out in attachment 3. The business model would

cross subsidise the delivery of pro bono services and supports through the commercial estate planning arm of the firm. 10. Recognition and promotion of estate practice and elder law as the professional competences that underpin the delivery of high-quality professional and commercial services to citizens as they age supported by adoption of the NSW Solicitors capability framework to support this competency focus. 11. Recognition of the need to promote the use of appropriate technology to reduce the infrastructure and service delivery costs of the multidisciplinary range of services canvassed in this submission. 12. Support for Collaborative working to be recognised as a vital method that underpins the delivery of the hybrid business models outlined in this submission, including support and funding for the partnership between STEP and the Institute for Collaborative Working Australia (ICW Aus) to advance the professional practice and business model developments advocated in this submission.

Conclusion:

Because of the complexity of the issues raised in the submission, we propose as initial starting points a focus on:

i) Regulatory and legislative recognition of: (1) estates practice (including elder law) as a multidisciplinary professional competence of high value to the community (2) adoption of the NSW Law Society Solicitor Capability Framework to support the deployment of those specialist competences at point (1) above in the NSW Community (3) the value of the work at points (1) and ((2) to increasing the inclusiveness of the New South Wales community to its citizens. (4) The need to improve and the participation of all citizens in New South Wales through improved systems and processes operating within the community for access to decision-making support services through professional and commercial services. ii) Support for the establishment of cross-disciplinary training in cognitive responsive consultation and interviewing. iii) Support for the establishment of the pilot multidisciplinary professional services unit, which can work in conjunction with private professionals as well as community institutions to fill in the skill gaps in client decision-making support in the community.

The attachments to this submission set out resources that can support the implementation of these 3 actions.

2 papers by Jane Lonie are attached as supporting documents for the use if enquiry members.

The authors are happy to speak further to this submission if required.

Michael Perkins Jane Lonie Matthew Lock

Attachments

  1. Briefing paper explaining the need for specific training in cognitive responsive communication and behaviour-based evaluation of decision-making ability of family, carers, supporters, service providers and professionals irrespective of their discipline of origin.
  2. Consultation Guide draft that is an example of the resource needed to facilitate training in cognitive responsive interviewing.
  3. Briefing paper about the proposed business structure and operational model needed to provide a foundation in establishing multi-disciplinary, cognitive, responsive, collaborative working-focused professional practices in nominated communities, providing broadly accessible professional services based on supported decision-making.

Supporting Documents

Jane Lonie Briefing papers

  1. Insight and Appraisal in Cognitive Decline: What Guardianship Tribunal Members. Legal representatives and Applicants should know.
  2. THE COGNITIVE MECHANICS OF ELDER ABUSE 2020

Resume for:

  1. Mr MJ Perkins
  2. Dr, Jane Lonie
  3. Mr Matthew Lock

Attachments removed from publication