Submission No 21

SUPPORTED DECISION-MAKING IN NSW

Organisation: Australian Government Department of Health, Disability and Ageing

Date Received: 13 March 2026

NSW Committee on Ageing and Disability inquiry into supported decision-making for adults with disability and older people in NSW

Submission from the Department of Health, Disability and Ageing

MARCH 2026

Introduction

The Australian Government Department of Health, Disability and Ageing (the department) strongly supports the NSW Parliament Committee on Ageing and Disability inquiry into supported decision-making for adults with disability and older people in NSW (the inquiry). The department recognises the significance of the inquiry in considering ways to enhance supported decision-making for older people and people with disability in NSW. The department welcomes the inquiry’s engagement of people with lived experience who wish to be supported in their decision-making, including Aboriginal and Torres Strait Islander people and people from culturally and linguistically diverse backgrounds. Decision-making principles and practices should be grounded in human rights principles – autonomy, dignity and equity, with supported decision-making practices taking precedence. The department commends the inquiry’s exploration of measures for substitute decision-making to only be employed in appropriate and limited circumstances.

Supported decision-making is a core theme within national aged care and disability reform. The department is pleased to use this opportunity to share insights from a recent review of Commonwealth laws featuring individual decision-making. This submission provides a summary of the approach taken to review relevant laws and an overview of the main themes reflected in the findings. This review has also captured recent reforms introduced by the new Aged Care Act 2024 (Cth) (the Act) which stand as an example of promising practice.

The Act establishes a modern rights-based, person-centred approach that prioritises the safety, health and wellbeing of older people. It places older people and their wishes at the centre of the aged care system. Accordingly, it acknowledges that older people are the decision-makers of their own lives. Under the Act, every older person is presumed to have the

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ability to make their own decisions. Where support is requested, it must be provided in a way that is respected, empowering and tailored to the older person’s wishes.

While the department’s insights are specific to Commonwealth arrangements in the disability and aged care sectors, the department acknowledges the importance of state-based enablers to uphold the decision-making rights of others. The department shares insights to support the inquiry’s consideration of barriers to implementing models for supported decision-making for people with disability and older Australians in NSW in the hope of achieving a nationally consistent and cohesive approach to embed supported decision-making in everyday practice.

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Supported decision-making

Everyone has the right to make decisions about their life, including the disability and aged care supports and services they may receive. Some people may want or need support to make these decisions.

Supported decision-making refers to processes and approaches that enable people to exercise their legal capacity, including making or communicating their decisions, will, and preferences, by provision of the support they may want or need to do so.

This support may involve a range of persons, services, and assistive technologies. Supported decision-making does not mean making a decision for, or on behalf of, another person. Supported decision-making starts from the understanding that everyone can make decisions and should be supported to do so. It involves asking a person if they would like supports to make or communicate a decision, and if so, what supports the person wants. It focuses on people being supported, only to the extent necessary, to make their own decisions.

A wide range of practices can be used to assist people to make decisions and respect their will and preferences. Supported decision-making can take different forms, including through having a support person or someone to assist a person in communicating their will and preference, universal design and accessibility measures, recognition of diverse, non-conventional methods of communication, and advance care planning so that a person’s will and preferences are known.i

The research report, prepared for the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (the Disability Royal Commission), Diversity, dignity, equity and best practice: A framework for supported decision-making found that, in the lives of people with cognitive disability, supported decision-making provided:ii

• greater exercise of choice and control
• support to navigate complex systems
• assistance to understand information and explore a broad range of options
• increased opportunities to make decisions, and
• a greater likelihood that decisions would reflect a person’s will and preferences.

Contributors to decision-making denial

All adults have the right to make their own decisions, even if those choices involve personal risk. However, some people may feel a responsibility to protect others they care about in their lives. This responsibility may manifest as denying a person an opportunity to make a decision, or opposing or ignoring a decision they have made.

In the aged care and disability context, this may include a person’s family members and loved ones, service providers, workers, and anyone else in their life involved in supporting them. Though the intention may be to demonstrate care and protection, this is an example of a paternalistic attitude, and resultant behaviours, that underestimate older people and people with disability by prioritizing perceived safety at the expense of their rights, autonomy, and self-worth.

Negative or discriminatory attitudes towards age and ageing are known as ageism. The Royal Commission into Aged Care Quality and Safety (Aged Care Royal Commission) highlighted

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ageism as a fundamental driver of systemic failures and neglect within the Australian aged care system. The Aged Care Royal Commission heard that widespread, often unconscious, ageist attitudes lead to negative perceptions of older people, diminishing their agency and human rights.iii This was echoed by the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Disability Royal Commission) which found that ageism, and negative attitudes towards disability, known as ableism, often intersect:iv

• Ageism contributes to continued decision-making denial. Ageism is stereotyping, discrimination and mistreatment based solely upon age. When directed towards older people, it comes from negative attitudes and beliefs about what it means to be older.
• Ageism can operate in conjunction with attitudes and stereotypes towards people with disability. These attitudes are known as ableism. Ableism is a component of discrimination against people with disability.

These beliefs may include that an older person’s age or disability means they cannot make their own decisions.

If people supporting an older person or person with disability adopt a binary approach to decision-making ability, this may also lead to a denial of their decision-making rights. A binary approach involves others making assumptions about an older person or person with disability’s ability to make decisions, likely that they do not have decision-making ability for some or all decisions, and ostracising them from their decision-making rights accordingly. This approach contends that if an older person or person with disability’s decision-making ability is questioned for some decisions or at a particular point in time, their ability to make those or other kinds of decisions at any other time is negated. For example, for older people, this is most seen when an older person is experiencing, or has experienced, fluctuating decision-making ability, including where they have a substitute decision-maker for some or all decisions. A failure to recognise that decision-making ability can fluctuate may lead to someone in an older person’s life obstructing them from making their own decisions or being supported to do so.

Review of Commonwealth laws on individual decision-making

The Disability Royal Commission recommended Australia transition from substitute decision-making towards supported decision-making, especially for people with disability.v The Disability Royal Commission further recommended that the Australian Government and state and territory governments take steps to review and reform laws concerning individual decision-making to give legislative effect to the 10 supported decision-making principles proposed (recommendation 6.6b).vi These 10 principles are discussed later in this submission relative to aged care reforms and implementation.

The Australian Government recognises substitute decision-making should only be used as a last resort. Accordingly, the Australian Government accepted recommendation 6.6(b) of the Disability Royal Commission ‘in principle’ with a commitment to undertaking a review of Commonwealth laws in relation to supported decision-making, as a first step. The department has recently completed a policy review focused on how current Commonwealth legislation, policy and processes align with the supported decision-making principles articulated by Disability Royal Commission recommendation 6.6b.

Legislation, policy and processes in scope for this review were those that contained provisions for decision-making to occur on behalf of an individual, where they did not have capacity to make decisions on their own, or where the individual required or wanted assistance with making decisions of some kind. A full list of in-scope legislation can be found in Attachment A.

Consistent with the update, regarding the Australian Government, in the Disability Royal Commission Biannual Report,vii this review is the first stage in progressing national implementation of consistent supported decision-making principles. Upon request, a copy of the final review report can be provided to the NSW Parliament Committee on Ageing and Disability.

Though the review was led by the Disability and Carers Group at the department, relevant to consideration of people with disability, findings from the review will be applicable across diverse sectors and settings.

Review approach

Both supported decision-making and substitute decision-making are features of Commonwealth disability related laws, policies, systems and disability support services. The review recognised the scale and prevalence of these arrangements in place across multiple settings, including the number of people with disability they currently apply to, and the wide range of ages and diverse support needs of those involved.

The review considered:

• how individual decision-making currently works in Commonwealth laws
• how support for individual decision-making appears in Commonwealth laws
• how well the laws aligned with the recommendations of the Disability Royal Commission and each of the proposed 10 supported decision-making principles, and

• how Commonwealth laws could change in the future, to align to the 10 principles.

The review was undertaken through desktop research, consultation with Australian Government departments responsible for implementing laws in practice, and peer review by subject matter experts. It examined 31 different Commonwealth Acts, and their related rules, regulations, and policies.

It should be noted that while this review responded to the Disability Royal Commission recommendations, it considered a much wider application of substitute and supported decision-making for people with disability — acknowledging that not all people with disability utilise the systems reviewed, and the systems were not exclusively utilised by people with disability. Ultimately, individual decision-making support is relevant to everyone, either utilising support and/or providing it.

The review had 4 key findings:

Support for decision-making is limited

Despite evidence to suggest a strong want or need for decision-making support, most systems are more aligned with substitute decision-making models, rather than supported decision-making models, often using a ‘best interests’ approach, rather than considering a person’s ‘will and preferences’.

There are different rules and terms used across systems.

A person’s ability or capacity to make their own decisions is treated as all-or-nothing, with little recognition that people experiencing a loss of decision-making ability may be able to make some decisions themselves with support.

Accessibility issues

Much of the content in the public domain was extremely dense and contained complicated terms and jargon. Few laws or policies provide information in accessible formats like Easy Read, plain language, audio, or video.

Language is often outdated and complex, with harmful terms like ‘special needs’ still used.

Exposed safeguards

Many systems lack both initial and ongoing suitability checks on those helping with decision-making, as well as insufficient ongoing monitoring and review of arrangements. The limitations on how data is collected on supported and substitute decision-making arrangements across different Australian Government schemes make it difficult to obtain accurate data and maintain effective oversight of these arrangements.

Few systems examined the relationship between an individual and a substitute decision maker, including whether a conflict of interest existed. Some arrangements did not have clear rules about what decisions a substitute decision maker could make on behalf of a person, creating barriers for substitute decision makers who want to do the right thing.

System gaps in capacity building

Many government systems could do more to help people build the skills they need to make their own decisions. Currently, many systems do not offer training, support, or tools that help people grow more confident in making choices. Important life moments—like becoming an adult or getting older—often don’t come with enough guidance or planning support.

The combination of complex, difficult to navigate systems, a lack of accessible support, easy to initiate supported or substitute decision-making arrangements, and a lack of signalling around the consequences of a substitute decision-making appointment, all combine to disempower people with disability.

Opportunities for improvement

Possible improvements were considered in line with the review’s findings which highlighted that embedding supported decision-making principles and practices heavily depends on the adequacy of the legislation, policy, cultural norms and knowledge of system actors.

These opportunities also complement actions recommended by the Disability Royal Commission, addressing issues such as the accessibility and design of systems, and how systems could be made easier for service users to access and navigate. Possible improvements were considered across three levels: legislative, systems, and individual. Examples of these considerations at each level are:

• Legislative level: A consistent definition of decision-making ability could be adopted across Commonwealth systems. This could be grounded in a presumption of decision-making ability, recognising that ability can fluctuate and that support often occurs across a continuum.
• Systems level: Systems could enable more reasonable adjustments or supports that people may want or need, including information, guidance, advocacy, or assistance from a support person.
• Individual level: Guidance and training about supported decision-making could be made available for people with disability, people supporting them or making decisions on their behalf, and professional staff.

Once finalised, the department’s review report may be used to inform consistent reform and implementation of supported decision-making principles across relevant Australian Government service systems. It may also be used to support future engagement between the Australian Government and the state and territory governments, to identify common goals for supported decision-making and opportunities for partnership. Upon request, a copy of the final review report can also be provided to the NSW Parliament Committee on Ageing and Disability.

The following sections of this submission provide more detailed insights into how supported decision-making principles have been embedded in aged care. The department offers these insights to support other government agencies who may be exploring how to strengthen supported decision-making across their relevant legislative areas, service systems, and jurisdictions.

New, rights-based aged care legislation

New aged care legislation commenced on 1 November 2025. The Act responds to key Royal Commission recommendations regarding supported decision-making and aged care.

This includes the:

• Aged Care Royal Commission which recommended that the development of new aged care legislation enable older people to exercise choice and control in their care, make decisions that affect their life and be supported to make their own decisions to the fullest extent possible.
• Disability Royal Commission which recommended 10 principles for supported decision-making be adopted in Australian Government laws concerning person centred decision-making.

Additionally, the Act reflects Australia’s obligations under international instruments that engage older people, such as the Convention on the Rights of Persons with Disabilities (CRPD). The CRPD outlines the rights of people with disability to dignity, autonomy, decision-making, and recognition of legal capacity.

Relevant to aged care, the CRPD recognises people with cognitive disability such as dementia.

Statement of Rights

The new Statement of Rights in the Act recognises the rights inherent to older people accessing or seeking to access Australian Government-funded aged care services. It defines what older people can expect from aged care providers in receiving safe, high-quality care. The Statement of Rights builds on existing or previous rights, including those from the Charter of Aged Care Rights (made under the Aged Care Act 1997 (Cth)),viii and incorporates additional protections informed by international human rights standards, including the International Covenant on Economic, Social and Cultural Rights. The Statement of Rights sets out that older people receiving or seeking Australian Government-funded aged care services have rights related to:

• independence, autonomy, empowerment and freedom of choice
• equitable access
• quality and safe funded aged care services
• respect for privacy and information
• person-centred communication and ability to raise issues without reprisal, and
• advocates, significant persons and social connections.

Importantly, older people have the right to be supported in their decision-making, if necessary, and to have their decisions respected.

This is complemented by an older person’s right to take personal risks, which recognises the principle of dignity of risk. Aged care providers are expected to take steps to act compatibly with these rights in their delivery of Australian Government-funded aged care services. The strengthened Aged Care Quality Standards expand on the expectations on aged care providers to provide quality care, including supporting older people in their decision-making.

Statement of Principles

The new Statement of Principles in the Act outlines key principles for how the Australian Government-funded aged care system should operate. These principles guide how people in the system should act to ensure that the decisions and wishes of older people are centred and respected. This includes the responsible Minister, System Governor,1 Aged Care Quality and Safety Commissioner, Aged Care Complaints Commissioner and any other person or body performing functions or exercising powers under the Act. The Statement of Principles includes 3 types of principles:

• Person-centred: focused on individuals receiving care.
• System-focused: guiding how the aged care system works.
• Governance-focused: ensuring proper oversight and accountability.

The principles include that the aged care system supports older people to be active and informed in decision-making or be supported, if necessary, to make or communicate decisions about their funded aged care services, to ensure their will and preferences are respected.

Embedding principles of supported decision-making

There is no clear accepted best practice for supported decision-making. Models and concepts continue to evolve and there is growing reform activity underway, including throughout states and territories. However, the Act reflects the principles of supported decision-making recommended by the Disability Royal Commission.

These principles have been adapted by the department in policy to support the Act:

Principle 1 – Recognition of the equal right to make decisions

All people have an equal right to make decisions that affect their lives and to have those decisions respected.

Principle 2 – Presumption of decision-making ability

All people must be presumed to be able to make decisions.

Principle 3 – Respect for dignity and dignity of risk

All people must be treated with dignity and respect and supported to take risks to enable them to live their lives the way they choose, including in their social and intimate relationships.

1 The System Governor is a decision maker identified by the Aged Care Act 2024 (Cth) and is responsible for making decisions relating to registered supporters. This includes decisions to register supporters, and to suspend and cancel the registration of supporters. The System Governor is the Secretary of the Department of Health, Disability and Ageing. In practice, the System Governor delegates authority. Delegates can include departmental staff and the My Aged Care workforce.

Principle 4 – Recognition of informal supporters and advocates

The role of informal supporters, support networks and advocates who provide support for decision-making should be acknowledged and respected.

Principle 5 – Access to support

People who may require supported decision-making should be provided with equitable access to appropriate support to enable them, as far as practicable in the circumstances, to:

• make and participate in decisions affecting them
• communicate their will and preferences
• develop their decision-making ability.

Note: Decision-making support includes universal design and accessibility measures and recognition of diverse, non-conventional methods of communication.

Principle 6 – Decisions directed by will and preferences

The will and preferences of people who may require supported decision-making must direct decisions that affect their lives.

Note: This includes respecting decisions that are expressed in non-conventional ways including non-verbally or through observed behaviour.

Principle 7 – Inclusion of safeguards

There must be appropriate and effective safeguards where people may require supported decision-making, including to prevent abuse and undue influence.

Principle 8 – Co-designed processes

People with disability, in particular people with cognitive disability, their supporters and representative organisations, should be involved in the development and delivery of policies and practices on supported decision-making.

Principle 9 – Recognition of diversity

The diverse experiences, identities and needs of people who may require supported decision-making must be actively considered.

Principle 10 – Cultural safety

First Nations people and culturally and linguistically diverse people with disability are entitled to supported decision-making that is culturally safe, sensitive and responsive. This includes recognising the importance of maintaining a person’s cultural and linguistic environment and set of values.

The principles of the Disability Royal Commission build on the work of the Australian Law Reform Commission’s report, Equality, capacity and disability in Commonwealth laws which recommended all jurisdictions reform laws and legal frameworks to formally recognise and promote supported decision-making in line with specific principles and a decision-making model.ix

Supported decision-making in practice

The support that an older person may request may be different in each circumstance, and for each decision the older person makes or communicates. The people in an older person’s life should seek direction from the older person on what supports they would like, if any, coupled with their own knowledge of, and experience with, the older person. This includes that for some decisions the older person may not want anyone else to be involved. People should enquire about and listen to feedback from the older person on the supports they want or need. They should also respect the decisions an older person makes, even if it is not a decision they would make for themselves or the older person.

Key supported decision-making concepts in aged care

In consultation with peak aged care consumer bodies, namely the Older Persons Advocacy Network (OPAN) and Council on the Ageing (COTA), the department has defined key concepts underpinning supported decision-making to support implementation of the Act. This involved close engagement with OPAN’s Supported Decision-Making Working Group, comprised of lawyers, academics, advocates, human rights experts and older people with lived experience. The department once again thanks these stakeholders for their expertise, insights and dedication to promoting the rights of older people to make and communicate their own decisions.

These definitions, and supporting material, can be found in the policy library for registered supporters, available via the department’s website at www.health.gov.au/our-work/aged-care-act/about/registered-supporters#a-new-registered-supporter-role-for-aged-care. These concepts may be applicable outside of aged care to other sectors and settings that place the person to whom the decision relates at the centre of the decision-making process.

Legal capacity

Legal capacity is about a person’s decisions and actions being recognised and respected by the law. It refers to both legal standing (that is, the ability to hold rights and duties, and to be recognised as a legal person) and legal agency (that is, the ability to exercise those rights and duties and to perform acts with legal effects). For example, there are ages below which children are not considered able to have the legal capacity to enter certain contracts, get married, or make a Will.

Adults, including all older people, are taken to have legal capacity unless they are determined to have temporarily or permanently lost their capacity to make a particular decision. This means an older person has the right to make their own decisions, and have those decisions recognised and respected by the law. Older people may also be provided with the support they require to exercise their rights and duties and to perform acts with legal effects.

Presumption of capacity

Every older person is presumed to have the ability to make their own decisions. This is known as the presumption of capacity.

The presumption of capacity applies to every decision to be made. This means that an older person is presumed to be able to make every new decision. If an older person is not able to

make a decision on one occasion, it does not mean they should be excluded from decision-making on other occasions.

Fluctuating decision-making ability

An older person’s ability to make decisions and communicate their will and preferences may change from day to day or over time, depending on the circumstances and decision being made. This is called fluctuating decision-making ability. This may mean an older person may require different types or levels of support at certain times of the day, on certain days, or during periods in their life. The Act recognises that an older person’s ability to make a decision can fluctuate and seeks to maintain an older person’s connection to their decision-making for as long as, and to the greatest extent, possible.

Where an older person experiences fluctuating decision-making ability, it does not render that the older person has lost the legal capacity to make decisions and have those decisions respected and recognised by law. An older person experiencing fluctuating ability to make a decision should be supported to make the decision.

When the older person can make decisions and convey their wishes, the older person and those supporting them should discuss and, where relevant, document the older person’s decisions, will, and preferences, and how they prefer to be supported.

However, an older person is not necessarily bound by any previously expressed will and/or preferences. People supporting an older people must remember that an older person may change their mind, including by making decisions that differ from their previously expressed will and/or preferences.

Dignity of risk

Dignity of risk means older people have the right to make decisions that involve risks, especially risks taken in pursuit of their quality of life, social participation, and intimate and sexual relationships.

An older person’s rights to continue making their own informed decisions, with knowledge of the options and possible consequences, must be respected. Open and non-judgemental discussions of options and consequences are one example of how an older person’s rights to take risks in their decision-making can be enabled.

Best interests

Best interests refers to a decision-making approach that is used in some substitute decision-making arrangements. A best interests approach requires the appointed decision maker to ask themselves whether they believe a decision is in the best interests of the person who the decision is about. In doing so, the appointed decision maker may have to:

• consider whether the decision is objectively in the best interests of the person who the decision is about, or
• consider the decisions, will, and preferences of the person who the decision is about.

A common alternative to a best interests approach is a will and preferences approach that requires an appointed decision maker to consider and act in line with the known or likely will and preferences of the person who the decision is about, without any consideration to the person’s best interests.

The approach that an appointed decision maker must adopt depends on the Commonwealth, state or territory arrangement under which they have legal decision-making authority.

Will and preferences

Will and preferences means a decision-making approach that is referred to in Article 12(4) of the Convention on the Rights of Persons with Disabilities but is not defined or explained.

What the term ‘will and preferences’ means is a contentious topic in academic research literature and human rights discourse. Some argue that ‘will’ and ‘preferences’ are two separate constructs driven by different neurological and cognitive processes that may lead to different decisions. Others argue that the expression of preferences is the means to achieve the will of a person. There is general agreement that will and preferences tend to align, even if they are driven by different processes. However, this is not always true of all older people, and those supporting an older person must consider this on a case-by-case basis when acting to support the older person.

The academic debate on the meaning of ‘will and preferences’ is important in the context of substitute decision-making and supporting people with complex neurological and cognitive conditions that impact their ability to make particular decisions.

A person’s will and preferences can also change. If an older person is currently expressing a will or preference that is different to their previously expressed will and preference, the most current expression of their will or preferences can be considered their known will and preferences.

People can learn about an older person’s will and preferences in a number of ways. However, all methods involve communication with the older person. For example:

• People can trust that a request made by the older person for them to do something is an expression of the older person’s known will and preferences. The older person does not have to share the reasons why they want something with the person they are requesting support from.
• In other cases, the older person may ask someone to support them in exploring different options and reflecting on their will and preferences before the older person decides what they want.

If someone supporting an older person is unable to determine the older person’s known will and preferences, and therefore does not know which action to take, if any, in supporting the older person, they can explore other ways the older person may be supported to make and communicate their decision, will, and preferences. This support may involve a range of:

• persons
• services, and
• assistive technologies.

For example, an older person can be supported by a trusted person in their life, or they can use decision-making supports that an aged care provider offers. If an older person cannot make a decision, with or without supports, they and the people supporting them may wish to consider whether substitute decision-making arrangements for the decision are available and appropriate.

Registered supporters

The registered supporter role is one of the changes under the Act that aims to promote older peoples’ rights to be supported to make their own decisions.

Registered supporters help older people to make and communicate their own decisions about their aged care services and needs. In practice, this may include a registered supporter speaking to My Aged Care, aged care assessors, aged care providers, and/or the Aged Care Quality and Safety Commission, in line with the older person’s known will and preferences. Registered supporters can also request, access and receive information about the older person they support.

A registered supporter could be a trusted family member or friend of an older person’s choosing. An older person can also have more than one registered supporter.

An older person does not have to register a supporter.

Not every older person will want or need someone to support them. Some older people might feel they are already supported by their carers and other significant people in their lives, without needing any of them to become a registered supporter. These people can continue to play an important role in supporting an older person, regardless of whether they are a registered supporter.

Appointed decision makers

Some registered supporters also have guardianship, enduring power of attorney or similar legal authority. These people are appointed decision makers for the older person and can make decisions on their behalf under Commonwealth, state or territory arrangements. An appointed decision maker can only make decisions on the older person’s behalf in line with their active, legal authority for the older person.

Having a registered supporter does not stop an older person from being able to receive information, make decisions, or communicate directly with others including aged care providers, My Aged Care and assessors. Older people can keep requesting, receiving and communicating information and making decisions.

Similarly, becoming a registered supporter does not afford a person decision-making authority for an older person, nor can it amend the authority the person has. A registered supporter’s role is to support the older person to make their own decisions.

An appointed decision maker is not required to be registered as supporter to exercise their decision-making authority for the older person.

Older person’s choice and control over information sharing

Information sharing can be a key element of the registered supporter relationship. Having information and documents can help to facilitate an effective supportive relationship between a registered supporter and the older person they are supporting. If a registered supporter cannot access information about the older person they support, they may be unable to perform

their role; that being, to help the older person make and communicate their decisions, in line with the older person’s known will and preferences.

However, someone can still be registered and perform the supporter role without having the authority to automatically access or receive information about the older person they support.

This is because, in most cases, a registered supporter relationship will be established with the mutual consent of the older person and their prospective supporter. In these circumstances, the older person is asked if they wish to consent to automatically sharing with their supporter information and documents that may or must be given to them under the Act. An older person can decide not to consent to this, but to still have a registered supporter.

When an older person consents to automatically sharing information with their registered supporter, they are consenting to sharing all information and documents that may or must be provided to them under the Act. The older person’s consent to automatic information sharing at the point of requesting to register is given on an all or nothing basis.

If, however, an older person consented to both registering and automatically sharing information with their supporter, they can at any time change or withdraw the consent they previously provided. Inversely, an older person can elect not to consent to automatically sharing information with their registered supporter when registering the relationship but provide it later.

The department, through My Aged Care, records different system-based labels for registered supporters subject to the consent an older person provides during registration, or the decision-making authority of the person requesting to be registered as a supporter. This ensures the older person’s preferences for how and by whom they wish to be supported are known by My Aged Care actors, aged care providers and workers, and other support services engaging with an older person such as Care finders.

Safeguards embedded in the registered supporter role

The Act embeds several safeguards against abuse of an older person from their registered supporter. Some of these safeguards include:

• The duties of a registered supporter: s 30.
• An older person’s right to review when a supporter has been registered without their consent: s 557.
• The System Governor’s ability to make enquiries, including about any alleged coercion of an older person to consent to a registered supporter relationship: s 343.
• An older person’s ability to request to end a registered supporter relationship at any time: s 53.
• The System Governor’s ability to suspend and cancel the registration of a supporter: ss 49, 51.
• The System Governor’s ability to share information with other people and authorities, where appropriate: s 539.
• Offences for current and former registered supporters who abuse their position: s 36.

Transitional arrangements

Prior to 1 November 2025, older people could have people appointed with My Aged Care to support or act for them in their dealings with My Aged Care. These relationships were called regular representatives and authorised representatives.

Most representative relationships in My Aged Care went through changes to come under the Act. Regular and authorised representatives active in My Aged Care on 31 October 2025 became known as registered supporters from 1 November 2025.

For older people who had a regular or authorised representative active in My Aged Care on 31 October 2025, unless the relationship was opted out of, it transitioned under the Act. This ensured older people seeking or receiving aged care services continued to receive decision-making support.

To ensure older people and their My Aged Care representatives understood the changes, the department partnered with OPAN and COTA to develop and publish a guide and case studies on the transitional arrangements. My Aged Care workforce training and scripting was updated, and information about the registered supporter role was available via My Aged Care, the department website and select communication channels utilised across the aged care sector from March 2025.

In the lead up to the commencement of the Act, 4,541 My Aged Care representatives and clients opted out of the transition (out of approximately 1.2 million representative relationships). These individuals were asked to identify their reason for opting out and indicated, in order of prevalence:

• that the relationship was not required
• they had other people supporting them
• they were unable to perform the duties of the new role
• they would not be able to meet the legal obligations of the new role, or
• they were unaware of the relationship.

Further, in preparing for the commencement of the Act, the department identified people registered as authorised representatives in My Aged Care that were required to provide evidence of their active, decision-making authority for an older person to meet the registration requirements under the Act. This may have included, for example, legal documentation demonstrating the representative held decision-making authority under an enduring power of attorney or enduring guardianship.

My Aged Care undertook targeted outbound phone calls from March to October 2025 to these people to advise them of the changes, including what they needed to do for the relationship, if still needed, to transition on 1 November 2025.

Sector engagement

Policy reform alone will not achieve change. Organisational culture and personal daily service delivery must also embrace supported decision-making.

Aged care providers, workers and assessors play a significant role in championing and facilitating supported decision-making under the Act. Without adequate training,

resourcing and accountability, embedding supported decision-making in practice risks becoming symbolic rather than transformative.

Feedback from the sector indicated there was strong awareness and willingness to engage with the supported decision-making reforms, and solid understanding of the role of registered supporters. This was attributed to sector engagement activities designed to inform and equip the aged care sector to effectively embed supported decision-making in everyday practice. These activities included a series of training resources, policy artefacts, and presentations delivered to the department’s local network.

By example, the department released eLearning modules for aged care workers which explore the core rights and principles of the Act, and focus on supported decision-making, cultural safety and how to uphold the rights of older people through inclusive, respectful practices. A suite of practical tools and resources is also available to promote informed decision-making, encourage meaningful dialogue, and foster a shared understanding of quality care between carers, volunteers, aged care workers, older people and those who support them. These learning modules and resources can be found at www.health.gov.au/our-work/aged-care-act/prepare/elearning-for-aged-care-workers-and-volunteers#module-3-release-2-embedding-rights-in-practice.

Short educational modules are also available to aged care workers at https://equiplearning.utas.edu.au/. These were updated to support the commencement of the Act, including content on supported decision-making.

Additionally, the department administers a survey of older people to understand and improve their experiences in residential aged care. The Residents’ Experience Survey is an annual survey for older people living in Australian Government-funded residential aged care homes. The survey is delivered by an independent third party with a qualified survey team and aims to engage around 20 per cent of residents each year.

Resident autonomy, the extent to which residents continue to live independently, was the most improved area of the survey from 2023 to 2024. It is measured by the questions “Do you have a say in your daily activities?” and “Are you encouraged to do as much for yourself?”. In 2024, 68% of residents indicated that they always had a say in their daily living activities, and 58% indicated that they were always encouraged to do as much as possible for themselves. The department acknowledges that attitudes and approaches that align with supported decision-making likely correlate with residents’ perceived autonomy and self-determination. The department anticipates that results from survey rounds following the commencement of the Act will assist with tracking broader cultural change in the sector.

More information on the Residents’ Experience Survey is available at https://www.health.gov.au/our-work/residents-experience-survey.

Post commencement of the Act

Registered supporter data

Reform to strengthen supported decision-making is one way to ensure that substitute decision-making is practiced as an option of last resort.

In the first month following the Act’s commencement, there were over 13,000 new registered supporter relationships created. By 25 February 2026, the total number of active registered supporter relationships was 1,220,829. This figure includes My Aged Care regular representatives who transitioned at the commencement of the Act to registered supporter relationships.

Most registered supporter relationships were registered with two party consent (98.8%). This emphasises an older person’s right to choose how and by whom they wish to be supported. Of these,

• In the majority of relationships (1,205,931), the older person agreed, or was deemed to have agreed under the transitional arrangements, to the automatic sharing of information with their registered supporter.
• In a minority of relationships (586), the older person sought to register a supporter but did not to agree to automatically share certain information about themselves.

These arrangements give effect to an older person’s right to choose who their personal information is shared with in the context of registered supporter relationships.

Of the total registered supporter relationships, the remaining relationships (14,312; 1.2%) were registered with the prospective supporter’s consent and reliance on their decision-making authority for the older person, recognised by the Act. In these circumstances, the registered supporter is also an active, appointed decision maker for the older person. They are responsible for supporting the older person to make or communicate their own decisions and can only make decisions for the older person if they are acting in line with their active, legal authority under separate Commonwealth, state or territory arrangements.

Even when another person makes a decision on behalf of an older person, the older person should remain involved and be at the centre of decisions that affect them, as far as practicable. Appointed decision makers may also have duties, conditions or requirements they must adhere to under their Commonwealth, state and territory arrangements.

Where an older person has an active, appointed decision maker, this does not necessarily mean that they cannot make all decisions for themselves on a day-to-day basis. The presumption of capacity may continue to apply. For example, an appointed decision maker may have authority to make certain types of decisions, such as financial decisions. In these circumstances, the older person may still be presumed to have capacity to make decisions about their life. This means the older person may continue to make decisions and be supported to do so. However, for financial decisions within the scope of the active, appointed decision maker’s authority, the appointed decision maker may need to be involved as well.

Lessons learned from implementation

The Act represents groundbreaking reform that has the power to challenge ageist attitudes and restore agency to older people over their own lives. It celebrates the rights of older people to make and communicate their own decisions, rather than having decisions made for them. A paradigm shift of this kind is gradual. The department acknowledges that change will not happen overnight and there are opportunities for continuous improvement in the administration of the aged care system.

The department continues to challenge assumptions across the aged care sector regarding the need for an older person to have an appointed decision maker, and when it may be appropriate to involve an appointed decision maker in an older person’s decision-making. The department also appreciates that tensions can arise between a person’s right to protection of their personal information with others’ right to procedural fairness and is conscious of its role in regulating registered supporter relationships including making decisions that may contradict the older person’s wishes. Additionally, prioritising a rights-based approach that values consultation and strives for continuous improvement is a significant feature in the department’s road to implementation, with ongoing education considered pivotal.

Assumptions about decision-making authority for an older person

An appointed decision maker can only act for, or make decisions on behalf of, an older person if it is within the scope of their active, legal authority. Substitute decision-making arrangements differ depending on where the older person lives in Australia and the type of authority someone has to make decisions for them. For example, if an active, appointed decision maker has financial decision-making authority, this may not extend to making personal or health decisions for the older person. Similarly, in some circumstances, a person’s authority to make decisions for an older person does not become enlivened until the older person is found to have lost, or be experiencing a loss in, their decision-making ability.

People engaging with appointed decision makers must confirm the decision maker’s legal authority. This involves verifying the scope of an appointed decision maker’s authority and whether that authority is active before a decision made by that appointed decision maker on behalf of the older person can be accepted and actioned.

Where a decision falls outside of the scope of an appointed decision maker’s authority, or the authority is not yet active, the appointed decision maker must refrain from making or influencing the older person’s decision. They must instead allow the older person to make that decision, and if the older person wants support, adopt principles of supported decision-making in supporting the older person to make their own decision.

Through published policy, the department continues to encourage appointed decision makers to understand and uphold their responsibilities under their Commonwealth, state or territory arrangements. Examples include:

• Registered Supporters Frequently Asked Questions, available at www.health.gov.au/resources/publications/registered-supporters-frequently-asked-questions.
• My Aged Care webpage for appointed decision-makers, available at www.myagedcare.gov.au/registering-supporter/appointed-decision-makers.

No requirement for an appointed decision maker

Older people cannot be pressured or forced to create an enduring instrument, including an enduring guardianship or an enduring power of attorney. Neither can an aged care provider exclude an older person from services simply on the basis that they have no enduring instrument in place. Additionally, an older person cannot be refused services simply because they do not have an active, appointed decision maker – for example, a guardian appointed by a state or territory court, tribunal, board or panel.

However, if an older person’s decision-making capacity is questioned, and the older person has an active, appointed decision maker, where the decision to be made falls within the scope of the active, appointed decision maker’s authority, the appointed decision maker may need to be involved, in addition to, the older person.

The department continues to encourage aged care providers to embed principles of supported decision-making in their organisational procedures, and to centre the older person in decisions about their care and services. Key policy and training resources include:

• Aged care providers policy, available at www.health.gov.au/resources/publications/aged-care-providers-policy.
• Education and training to support the implementation of the Act, available at www.health.gov.au/our-work/aged-care-act/the-new-aged-care-act-in-practice?language=en#education-and-training.

My Aged Care cannot bestow or amend decision-making authority

Sometimes an older person is unable to make decisions and has no one in place with decision-making authority to make decisions for them.

My Aged Care cannot give anyone decision-making powers to act on the older person’s behalf, nor can it amend the authority afforded under Commonwealth, state or territory substitute decision-making arrangements.

There are still ways for those concerned about an older person’s welfare to support them. This involves applying for a guardianship and/or administration order with the state or territory court, board, panel or tribunal where the older person lives. They can conduct a hearing and decide if the older person requires a legal decision maker. They can also decide who this person will be. Some state and territory processes also include emergency options to appoint a decision-maker quickly, if needed.

If an older person is unable to make a decision, despite the provision of support, at a time when a decision needs to be made about their aged care, and the older person has no one in place with decision-making authority to make that decision for them, they may experience a delay in accessing or receiving aged care services until a process to apply for a guardianship and/or administration order is complete. This is because the Act requires that a person must not do a thing on behalf of an older person under or for the purposes of the Act unless that person has decision-making authority recognised by the Act and is acting in line with that authority.

My Aged Care has published information to assist older people and those supporting them to access information and specialist services most appropriate to their circumstances. This information includes arrangements and processes relevant to NSW, and is available at www.myagedcare.gov.au/registering-supporter/appointed-decision-makers.

Upholding principles of procedural fairness

The Act outlines certain circumstances where a person affected by a decision of the System Governor must be notified and given an opportunity to respond. In the registered supporter context, these notifications are required following a decision by the System Governor to suspend the registration of a supporter, or an older person’s request to cancel the registration of a supporter whose registration did not require the consent of the older person (that is, the person seeking to be registered was an active, appointed decision maker for the older person).

These notifications may contain personal information relating to the older person and/or their registered supporter, in accordance with the Act. This is because the System Governor is required to disclose the reasons why a decision was made in certain circumstances. Notifications are likely to contain information of a sensitive nature. This must be weighed against the need for affected entities to respond to the information available to, and the subsequent decision of, the System Governor, including any allegations against them. The department acknowledges that these notifications are one way the Act balances an individual’s personal privacy with processes that uphold the principles of procedural fairness.

To provide greater awareness of these sometimes competing interests, the department has published a Cancellation of Registration policy, available at www.health.gov.au/resources/publications/cancellation-of-registration-policy.

Role of the System Governor as regulator

The System Governor is responsible for deciding to register supporters and suspend and cancel their registration. Accordingly, the System Governor plays a crucial part in safeguarding the integrity of the registered supporter role, including that registered supporters do not abuse their role.

For example, the System Governor cannot register a person as a supporter under the Act, unless satisfied the person is able to comply with the duties of supporters. Registered supporters have a duty to declare, and avoid or manage, conflicts of interest. If a person requested to become a registered supporter, declared a conflict of interest in acting as a registered supporter for the older person they wish to support, and the System Governor is not satisfied the conflict can be avoided or managed, the System Governor cannot register that person as a supporter. The department has published a Duties policy to support older people and prospective or registered supporters to understand, declare and manage conflicts of interest, available at www.health.gov.au/resources/publications/duties-policy.

This renders the System Governor must consider each registration request on a case-by-case basis and may determine that a prospective supporter is not appropriate to be registered. This determination could be made despite the agreement of the older person and prospective supporter to the relationship, and an acceptance by them of an existing, or likely, conflict of interest under the Act. The department recognises that the System Governor’s decision-making may therefore disregard the wishes of the older person including any risks they are willing to take.

In these circumstances, while the System Governor is mandated under the Act not to register the person as a supporter, an older person can still choose to be supported by any person as a third party. My Aged Care has established workforce processes and scripting that involve the

older person providing their consent to be supported by a third party. The older person’s consent extends only to the third party’s dealings with My Aged Care, on each occasion.

This highlights the System Governor as a regulator of registered supporters alone, not of all support opportunities available to an older person. The Act outlines the System Governor’s responsibility to safeguard the integrity of registered supporters, noting responsibility to promote an older person’s right to be supported how and by whom they want in line with the principles of supported decision-making is shared by everyone across the aged care sector.

Rights-focused approaches over efficiency

Implementation of a rights-focused approach requires redefining measures of success. The rights of an older person must be prioritised over any efficiencies of alternative decision-making processes or service delivery. Supported decision-making often require those supporting an older person to take extra time and effort to support an older person, adapt to the needs and wishes of the older person, and reject opportunities to influence or make decisions for an older person. It necessitates engaging with nuance and recognising the older person’s decision-making abilities and appetite for risk-taking. It might mean that a decision cannot be made immediately, or a decision is made that others might not agree with.

The department understands the feelings of discomfort and uncertainty that older people, those supporting older people, aged care providers and workers and the aged care sector broadly may experience in embedding supported decision-making practices. The department recommends those navigating organisational or policy reforms are guided by consistent supported decision-making terms and principles to assist them to shape and evaluate behavioural and cultural change. In the context of the Act and its implementation, the department is guided by the presumption of capacity and the right of older people to make decisions, with support if necessary, and to have those decisions respected, coupled with the principles recommended by the Disability Royal Commission.

Education, consultation and continuous improvement

The department appreciates the recent reforms will require ongoing education to effect long-term change. Investing in continuous capability and confidence uplift across the aged care sector will help uphold the decision-making rights of older people. Education resources should emphasise supported decision-making practices when engaging with those living with dementia and other conditions associated with cognitive decline. As highlighted earlier, all older people have the right to make their own decisions, with support if they want or need it.

The department also commends the inquiry’s engagement of people with lived experience who wish to be supported in their decision-making, including Aboriginal people and people from culturally and linguistically diverse backgrounds.

The department is committed to ensuring supported decision-making resources are reflective of, and responsive to, the views and wishes of older Australians. The department engaged with key consumer peak bodies, namely COTA and OPAN including its Supported Decision-Making Working Group, and the national aged care regulator, the Aged Care Quality and Safety Commission (the Commission) on the resources to support the new registered supporter role. Feedback is ongoing and the department is committed to improving these resources where required.

Further, the department has developed and translated a brochure providing key information about the registered supporter role into 21 languages. Likewise, the Registration of a Supporter form has been translated in the same languages. These artefacts provide essential information about the registered supporter role, appointed decision makers, and consent scripting, to ensure that older people and those supporting them from linguistically diverse backgrounds can make informed choices about their support opportunities under the Act. These are available from the My Aged Care website at www.myagedcare.gov.au/translated.

The department acknowledges the work of the Commission in providing culturally informed information, guidance and support to older people, aged care providers and workers. These are available as follows:

• Aged care providers: www.agedcarequality.gov.au/providers/education-training
• Aged care workers: www.agedcarequality.gov.au/workers/education-and-training-workers
• Older people and those supporting them:
  • www.agedcarequality.gov.au/older-people/your-rights/statement-rights
  • www.agedcarequality.gov.au/older-people/aged-care-first-nations-people
  • www.health.gov.au/topics/aboriginal-and-torres-strait-islander-health/aged-care#resources

The department also acknowledges the role of community and advocacy organisations in implementing supported decision-making reform. OPAN provides free, confidential and independent information and advocacy support to older people who are seeking or receiving government-funded aged care, as well as their families and support network. OPAN also provides educational resources and services to providers to assist them to meet their obligations under the Act.

In doing so, OPAN has developed supported decision-making resources, such as a toolkit and eLearning modules, and held numerous webinars to support older people to realise their decision-making rights. Examples of these resources include:

• opan.org.au/supported-decision-toolkit/
• opan.org.au/education/training-for-aged-care-professionals/ (noting training modules are also publicly available via the department’s website at www.health.gov.au/our-work/aged-care-act/the-new-aged-care-act-in-practice#education-and-training)

Attachment A – Legislation and service systems analysed

In scope legislation for the review of Commonwealth laws on individual decision-making

System	Legislation
Aged Care	Aged Care Act 1997 / Aged Care Act 2024 / Aged Care Rules 2025 / Quality of Care Principles 2014 / User Rights Principles 2014
Corporate and other participation	Marriage Act 1961 Commonwealth Electoral Act 1918 Corporations Act 2001 Superannuation (Industry) Supervision Act 1993 / Superannuation (Industry) Supervision Regulations 1994 Australian Securities and Investments Commission Act 2001 Inspector-General of Taxation Act 2003 Australian Law Reform Commission Act 1996
Health	My Health Records Act 2012 Human Services (Medicare) Act 1973 Gene Technology Act 2000 National Blood Authority Act 2003
Justice	Administrative Review Tribunal Act 2024 Crimes Act 1914 Criminal Code 1995 Evidence Act 1995 The High Court of Australia Act 1979 / The High Court Rules 2004 Federal Court of Australia Act 1976 / The Federal Court Rules 2011 Family Law Act 1975 Federal Circuit and Family Court of Australia Act 2021 / Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) / Federal Circuit and Family Court of Australia (Division 2)* (General Federal Law) Rules 2021 *Note - Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025
National Redress Scheme	National Redress Scheme for Institutional Child Sexual Abuse Act 2018
NDIS	NDIS Act 2013 / NDIS Nominee Rules 2013 / NDIS Amendment (Management of Funding and Plan Management) Rules 2025
Social Security Related	Social Security Administration Act 1999 A New Tax System (Family Assistance) (Administration) Act 1999 Child Support (Assessment) Act 1989 Child Support (Registration and Collection) Act 1988 Paid Parental Leave Act 2010
Tax	Taxation Administration Act 1953
Veterans’ Affairs	Veterans Entitlements Act 1986 Safety, Rehabilitation and Compensation Act 1988 Military Rehabilitation and Compensation Act 2004

i Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, ‘Final Report Volume 6: Enabling autonomy and access’, p 118 available at https://disability.royalcommission.gov.au/publications/final-report-volume-6-enabling-autonomy-and-access.

ii Bigby, Christine; Carney, Terry; Then, Shih-Ning; Wiesel, Ilan; Sinclair, Craig; Douglas, Jacinta; et al. (2023). Diversity, dignity, equity and best practice: a framework for supported decision-making. La Trobe. Report. https://doi.org/10.26181/21965183.v2.

iii Royal Commission into Aged Care Quality and Safety, ‘Final Report Volume 2: The current system’, pp 217-220, available at https://www.royalcommission.gov.au/aged-care/final-report.

iv Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, ‘Executive Summary, Our vision for an inclusive Australia and Recommendations’, pp 17-20, available at Final Report - Executive Summary, Our vision for an Inclusive Australia and Recommendations | Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability.

v Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, ‘Final Report Volume 6: Enabling autonomy and access’, p 118 available at https://disability.royalcommission.gov.au/publications/final-report-volume-6-enabling-autonomy-and-access.

vi Ibid, rec 6.6b.

vii Disability Royal Commission Progress Report 2025, Recommendation 6.6 — Supported decision-making principles, available at https://www.health.gov.au/resources/publications/disability-royal-commission-progress-report-2025/volume-6-enabling-autonomy-and-access/recommendation-66-supported-decision-making-principles.

viii User Rights Principles 2014 (Cth), Schedule 1.

ix Australian Law Reform Commission, Equality, capacity and disability in Commonwealth laws, Final report, ALRC report 124, August 2014.