NDIA Accountability Project

Legal Aid NSW’s submission to the Joint Committee on Ageing and Disability Inquiry into supported decision-making in NSW

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Submission No 2

SUPPORTED DECISION-MAKING IN NSW

Organisation: Legal Aid NSW

Date Received: 18 February 2026

18 February 2026

The Hon. Cameron Murphy, MLC Chair, Joint Committee on Ageing and Disability Parliament of New South Wales By email: ageingdisability@parliament.nsw.gov.au

Thank you for the opportunity to provide feedback to the Joint Committee on Ageing and Disability inquiry into supported decision-making for adults with disability and older people in NSW (the Inquiry).

Broadly, our position is that supported decision-making is not adequately recognised, facilitated or funded by NSW or Commonwealth government agencies, and that there is insufficient guidance and funding for people to act as independent supported decision-making advocates. Further, individuals are frequently made subject to guardianship or financial management orders without supported decision-making being explored as an alternative. Consequently, Legal Aid NSW has observed many clients who feel disempowered, lack autonomy and experience avoidable hardship. In addition, our Aboriginal clients encounter siloed and fragmented support services, with limited integration around the person or their family to support self-determination. These experiences highlight the urgent need for more responsive, accessible and person-centred approaches to supported decision-making in NSW.

This submission addresses Terms of Reference a), b), c), f), and g) of the Inquiry as set out below.

a) What is the lived experience of adults with disability and older people seeking to access appropriate support to make decisions for themselves?

Our clients’ lived experiences show that the current system, at both State and Commonwealth levels, does not facilitate supported decision-making and instead can disempower individuals, restrict autonomy and create avoidable hardship.

Our clients report experiencing challenges in accessing the support they need to make decisions for themselves, particularly in their interactions with the NSW Trustee and Guardian (NSWTAG). Many report that decisions made on their behalf do not reflect their needs, preferences, or circumstances. A recurring concern raised is the financial hardship some clients experience in connection with NSWTAG’s decision-making processes. Clients have described situations where they are left with limited funds for essential items such as food, hygiene products, and transport, and where accessing money for basic personal expenses can be difficult.

Tel: 9219 5000 • Fax: 9219 5923 • NRS: 133 677 • LawAccess NSW: 1300 888 529
Address: 323 Castlereagh Street, Sydney 2000 • PO Box K847, Haymarket NSW 1240
Website: www.legalaid.nsw.gov.au • ABN 81 173 463 438
We have accredited specialists in children’s law, family law and criminal law

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Clients also describe systems that feel impersonal and inconsistent. They report that limited continuity within NSWTAG means they often speak with different staff members each time they make contact. As a result, individuals may need to repeatedly explain their circumstances, which can be frustrating and give the impression that their situation is not progressing. This lack of relational consistency can weaken trust and make it harder for people to participate meaningfully in decisions that affect their lives.

Clients also report that obtaining a timely response from NSWTAG can sometimes be difficult.. This can create a sense of being less involved in processes intended to support them..

The communication channels available to clients can also present barriers. NSWTAG’s primary reliance on phone and email can be for people with disability and older people, particularly those who do not have reliable access to devices or the internet. Others may rely on face-to-face communication to understand information and express their views. Without a range of accessible communication options, some individuals find it difficult to participate meaningfully or to engage with decision-makers about their financial and personal affairs.

Overall, the current framework creates structural and practical barriers to implementing supported decision-making. The threshold for restoring rights is too high, processes are unresponsive, and the systems surrounding guardianship and financial management orders tend to reinforce dependency rather than promote capability.

Commonwealth agencies are not designed to facilitate supported decision-making

Supported decision-making is often not emphasised in the provision of Commonwealth services such as Centrelink, aged care and the National Disability Insurance Scheme (NDIS). As a result, people who do not require a guardian but do require independent and trained supported decision-making advocacy face significant challenges in navigating these systems and making important decisions without adequate support.

We have observed that Commonwealth agencies are often not designed to facilitate supported decision-making. Many agencies have procedures intended to protect privacy or security; however, these processes can unintentionally make it difficult for people with disability to receive appropriate support. For example, Services Australia frequently declines to speak with a support person unless a formal nominee arrangement is in place. However, establishing a nominee can be time consuming and complex, and is not always desirable- particularly when a person is seeking only one-off or time-limited assistance from a lawyer, advocate, support worker, or other professional. This creates a significant barrier for individuals who need immediate support to understand or act on a Commonwealth decision.

Written communications from Commonwealth agencies can be lengthy, technical and difficult to understand. Clients frequently report ongoing confusion even after contacting agencies by phone or in person to seek further clarification. Many ultimately

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rely on family members who are not independent and who lack the training or resources needed to support decision-making.

Although the NDIS funds specific advocacy services, these services are often at capacity, with long wait times and limited ability to provide support. Existing Commonwealth funding does not meet the level of intensive assistance often required for supported decision-making. NSW-funded services are generally not resourced, trained or mandated to assist with Commonwealth matters, leaving a substantial gap in support for many people.

In NDIS matters before the Administrative Review Tribunal (ART), inadequate funding and limited capacity within advocacy and legal services often results in NDIS participants being supported only by a support coordinator or service provider. This raises several issues, including that:

  • many support coordinators are not trained to undertake this work
  • support coordinators are not funded for this activity and often work for free, and
  • the relationship between the service provider/support coordinator and participant may become strained, and involvement of the service provider may create conflict-of-interest concerns.

Further, both the ART and the National Disability Insurance Agency can be reluctant for service providers and support coordinators to participate in proceedings, leaving NDIS participants without adequate assistance.

As supported decision-making needs arise across both State and Commonwealth systems, greater coordination between the NSW and Commonwealth Government is required to improve the funding and facilitation of supported decision-making, ensuring that vulnerable people are not left without appropriate support.

Recommendation 1: The NSW Government should coordinate with the Commonwealth Government to improve the funding and facilitation of supported decision-making across both NSW and Commonwealth matters, ensuring people receive appropriate and consistent support.

Difficulties revoking guardianship and financial management orders to enable supported decision-making

Once a guardian or financial manager is appointed, it can be difficult to have those orders revoked. This can create practical difficulties for supported decision-making, as substitute decision-making arrangements may remain in place longer than intended, rather than remaining temporary or responsive to a person’s development, changing circumstances, or increasing capacity.

An example of this can be seen in the operation of section 71 of the NSW Trustee and Guardian Act 2009, which allows NSWTAG to authorise a person to manage part of their own financial affairs. The criteria for obtaining a section 71 authority are set at a level that is difficult to meet in practice for many clients. NSWTAG generally requires individuals to demonstrate existing skill and ability in managing finances, supported by written evidence from case managers or clinicians. However, people under financial management orders have often had limited opportunities to manage their finances,

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making it hard for them to demonstrate the skills needed to take on more responsibility. This is particularly problematic for young people who are placed under financial management orders at age 18 and have never been given the opportunity to develop financial capability (this cohort is discussed below).

Legal Aid NSW has written to NSWTAG on behalf of clients requesting section 71 trial periods, supported by evidence and professional recommendations. These requests are often not facilitated.

Across legal, financial, health, education, employment and care systems, the existence of substitute decision-making orders can lead other service providers to default to engaging with the guardian or financial manager rather than with the individual. This can create a cumulative effect: once an order is in place, opportunities for the individual to build decision-making capacity diminish, and the system becomes increasingly reliant on substitute decision-makers rather than investing in supports that foster independence and build decision-making skills..

Recommendation 2: The NSW Trustee and Guardian should offer a financial skills development program to all people who are under a representation order appointing the public trustee as a representative.1

c) What are the distinct experiences of, and challenges faced by Aboriginal people and people from culturally and linguistically diverse backgrounds?

Aboriginal people experience distinct challenges in accessing and engaging in supported decision-making services. We note many Aboriginal people experience deep mistrust of legal, health, and government services arising from the ongoing impacts of colonisation, dispossession, forced child removal under assimilation policies, and the disproportionate use of formal guardianship proceedings.2

Further, Aboriginal lives, lifestyles, and decision-making practices may be inappropriately characterised by mainstream organisations as problematic and can lead to escalating interventions that fail to recognise the broader cultural, familial, and community context of the individual.

The availability of Aboriginal-specific services that support key dimensions of Aboriginal identity and provide wrap-around support for supported decision-making is critical to ensuring culturally appropriate and inclusive service delivery. However, for people living in remote and regional communities, access to such services may be inconsistent or non-existent. Where Aboriginal Community-Controlled Services and Organisations do exist, they are often under-resourced and lack sufficient funding to meet the needs of individuals and communities.

Where formal supported decision-making arrangements are imposed, Aboriginal people and their families can face additional barriers in navigating complex bureaucratic systems. In our experience, individuals subject to such arrangements can

1 Consistent with Recommendation 6.16 of the Final Report of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability. 2 According to the NSW Audit Office, 9% of Guardianship clients identified as Aboriginal, this is 3 times the general Aboriginal population in NSW

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feel helpless and unable to meet their own cultural needs, particularly in relation to supporting family members. There is often shame associated with having to request additional funds from government agencies to meet personal or cultural needs. This can place increased pressure on family members and friends to provide financial or practical support without reimbursement or additional assistance from the NSWTAG.

Our Aboriginal clients have also observed that support systems are often siloed and fragmented, and not adequately integrated with a person’s family to support informed and self-determining decision-making. As a result, individuals and families may not receive complete or accessible information, further limiting meaningful participation in decisions that affect them.

In many Aboriginal communities, decision-making is a collective process involving elders and kin in matters affecting the individual. Supported decision-making models that are Aboriginal-led, family-inclusive and grounded in cultural practice are often the most appropriate and effective. Strengths-based approaches that affirm identity, self-determination and empowerment should be prioritised over formal processes that risk removing autonomy.

Recommendation 3: Any supported decision-making model that impacts Aboriginal people should accommodate Aboriginal-led, family-inclusive decision-making that reflects cultural practices and fosters respect.

f) What measures would ensure substitute decision-making is an alternative approach that is employed in appropriate and limited circumstances?

Overrepresentation of care leavers in substituted decision making applications

Young people who have recently turned 18 and are leaving statutory out-of-home care (OOHC) are vastly overrepresented as subjects of financial management and/or guardianship orders. These young people do not always have a formal disability diagnosis or a NDIS plan. However, many have experienced significant trauma and have few or no informal supports (such as family or friends) to assist with supported decision-making, leaving them reliant on formal, paid supports.

Through our work representing clients in separate representative proceedings before NCAT, we have observed that when a young person with disability in OOHC approaches the age of 18, the Department of Communities and Justice (DCJ) will often apply for a financial management order as a matter of routine.

This appears to occur by default, rather than following an individualised assessment of the young person’s abilities, available supports, or preferences. Such applications are often made in the absence of meaningful efforts to support young people while they are in care to develop and demonstrate life skills and decision-making capacity, including financial literacy and budgeting skills. This approach is inconsistent with the principles of supported decision-making and restricts a young person’s autonomy at a critical developmental stage, limiting opportunities to build the skills needed for independent or supported decision-making.

Although financial management orders are often described as an ‘initial’ or temporary measure, intended to remain in place only while a young person develops financial

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management skills, in practice they frequently persist far longer than intended. Once the financial management order is in place, the young person has limited opportunity to manage their own money, make independent decisions, or develop the skills needed to participate in supported decision-making. As a result, it becomes more challenging for them to demonstrate financial capability. There is also often limited clarity around transition planning or case management support to assist the young person to develop these skills. This can create a cycle in which substitute decision-making becomes entrenched rather than remaining temporary and responsive to the young person’s development and increasing capacity.

Recommendation 4: The NSW Government should establish a service that funds and trains independent supported decision-making advocates for care leavers.

Recommendation 5: The Department of Communities and Justice should develop a transition approach for care leavers that prioritises autonomy, dignity, and decision-making freedom. This approach should require evidence that less restrictive alternatives, including supported decision-making, have been attempted before any substitute decision-making order is sought, and that such orders are used only as a last resort in limited circumstances.

Recommendation 6: The Department of Communities and Justice should develop improved training for OOHC providers3 on eligibility for guardianship and financial management orders, emphasising their serious implications and the principle that they should only be sought as a measure of last resort.

Recommendation 7: The NSW Government should adopt measures to improve the regulation of OOHC4 providers to ensure children in care receive adequate planning, upskilling and support in relation to financial and day-to-day decision-making well before they exit care.

Limited involvement of the care leavers in proceedings

Legal Aid NSW regularly works with care leavers who are subject to substitute decision-making orders, supporting them to seek revocation or limitation of those orders on review. In our experience, care leavers face a range of practical barriers to engaging with legal processes relating to applications for substitute decision-making orders before NCAT. For example, we regularly assist care leavers who:

  • have not attended previous hearings, particularly the initial application for a guardianship and/or financial management order
  • have not been provided with a copy of the guardianship or financial management order, and/or are unaware of the scope and effect of the order, and
  • have not received notice of reviews of guardianship or financial management orders.

We have observed that care leavers may miss opportunities to participate in these proceedings for a range of reasons, including unfamiliarity with tribunal processes and

3 Both funded service providers and the NSW Department of Communities and Justice. 4 Both funded service providers and the NSW Department of Communities and Justice.

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a lack of support to engage meaningfully. Initial applications often occur at the same time as a young person is transitioning out of care, a period already marked by significant change, instability and competing demands. At this point, participating in legal proceedings concerning guardianship or financial management may feel overwhelming and beyond the young person’s capacity

Recommendation 8: The NSW Government should introduce guidelines or legislative provisions to ensure enhanced safeguards for care leavers subject to guardianship or financial management orders, including:

  • A shorter review period of three months after the initial substitute decision-making order is made, and regular reviews after that.
  • A requirement that the NSW Civil and Administrative Tribunal be satisfied that a care leaver has had genuine opportunities to learn and demonstrate financial and day-to-day decision-making skills before continuing or extending a substitute decision-making order.
  • A clear presumption that substitute decision-making orders are imposed only as a measure of last resort, after less restrictive alternatives, including supported decision-making, have been explored.

The use of ‘separate representatives’ in proceedings involving care leavers

While Legal Aid NSW generally represents care leavers as direct representatives in the first instance, consistent with the presumption that a person has capacity to give instructions, we have anecdotally observed that ‘separate representatives’ are regularly appointed in applications for substitute decision-making orders.

We have observed instances where separate representatives have been appointed despite the care leaver having capacity to directly instruct a solicitor (and doing so in other court proceedings). The appointment of a separate representative, rather than a direct representative, can increase the power imbalance and undermine the care leaver’s autonomy by shifting focus away from the client’s instructions and towards the views of other stakeholders (such as NSWTAG, DCJ or the OOHC provider), instead of the solicitor acting on the direct instructions of their client. We recommend that a presumption of capacity to give instructions be applied in these proceedings.

Recommendation 9: The NSW Government should introduce guidelines to ensure that care leavers are appropriately legally represented in guardianship and financial management order proceedings, including that:

  • a solicitor is appointed for any care leaver subject to an initial application for guardianship or financial management order, and for at least the first three reviews, and
  • a solicitor is appointed as a direct representative by default, and only appears as separate representatives where the solicitor has determined that the care leaver does not have capacity to provide instructions.

The ‘principled’ approach to supported decision-making

We broadly support the ‘principled’ approach to decision-making as adopted by the Final Report of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability which states:

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Under a ‘principled’ approach, a person is supported to maximise their autonomy in making decisions and a ‘representative’ decision-maker can only be appointed as a last resort. Where this happens, a person’s will and preferences must remain central and be reflected in the representative’s decision.

If a person cannot actively participate in decision-making or communicate their will and preferences, the representative makes decisions based on their best interpretation of the person’s will and preferences. A person’s will and preferences can be over-ridden only when necessary to prevent serious harm. In these very limited circumstances, a representative’s decision-making may be guided by the standard of promoting ‘personal and social wellbeing.5

We consider this ‘principled’ approach should inform the development of any framework for supported decision-making.

Thank you again for the opportunity to provide a submission. If you have any questions or would like to discuss this matter further, please contact redacted

Yours sincerely

redacted

Monique Hitter Chief Executive Officer

5 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability: Executive Summary, Our Vision for an Inclusive Australia and Recommendations (Report, September 2023) 70-71.

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