NDIA Accountability Project

Relationships Australia NSW Submission to the Committee on Ageing and Disability: Supported Decision-Making Inquiry

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Submission No 27

SUPPORTED DECISION-MAKING IN NSW

Organisation: Relationships Australia NSW

Date Received: 13 March 2026

Relationships Australia NSW Submission to the Committee on Ageing and Disability: Supported Decision-Making Inquiry

13 March 2026

Introductory Statement

Relationships Australia NSW (RANSW) welcomes the opportunity to provide a submission to the NSW Parliamentary Inquiry into Supported Decision-Making, established by the Committee on Ageing and Disability. We work closely with older people, families and carers across the state, and we see daily the importance of decision-making frameworks that uphold autonomy, dignity and safety. Drawing on our clinical, mediation and elder support practice, as well as our commitment to rights-based, person-centred approaches, this submission outlines our perspectives on how supported decision-making can be strengthened to better protect and empower older people in NSW.

redacted Action Australia, of which RANSW is a member organisation.

Question 1. Do you endorse the default approach changing from substitute decision-making to supported decision-making? Why/Why Not?

  • Yes [x]
  • No [ ]

It is time for supported decision-making, as a rights-based approach that promotes dignity, autonomy and participation, to become the default approach to decision-making for older people. This is consistent with Australia’s obligations under international human rights instruments, including the Convention on the Rights of Persons with Disabilities, which recognises legal capacity and the right to support in exercising that capacity. Supported decision-making is also reflected in recent reforms such as the Aged Care Act 2024 (Cth), which establishes a supported decision-making framework and recognises “registered supporters” to help older people understand information, express their views and communicate decisions while retaining decision-making authority.

For older people, especially those in aged care, the default presumption that others should decide “for” them has too often led to disempowerment, paternalism and, at times, abuse. Research and practice in aged care show that when older adults are supported to make or participate in decisions about their care, living arrangements and finances, outcomes improve in terms of wellbeing, safety and satisfaction with services. A supported decision-making default is also consistent with trauma-informed and person-centred practice, and with contemporary quality standards for aged care which require providers to actively support older people to make choices and take reasonable risks.

Substitute decision-making should therefore be a measure of last resort, used only where a person’s will and preferences cannot be ascertained even with appropriate and creative decision-making supports over time. Where substitute decision-making is used, it must be tightly circumscribed, with clear duties to act in accordance with the person’s likely will and preferences rather than what others consider to be in their “best interests”. Robust accountability and oversight mechanisms, including review rights, independent advocacy and accessible complaints pathways, are essential to safeguard against misuse of power.

Finally, a genuine shift to a supported decision-making default requires cultural change across systems and services. Ageism and ableism continue to influence assumptions about older people’s capacity and “vulnerability”, especially in health and aged care settings. Education, practice guidance and leadership are needed so that professionals, families and institutions recognise older people as rights-holders with enduring moral and legal agency, and see supported decision-making as core business, not an optional add-on.

Question 2. Under what circumstances (if any) do you believe that substitute decision-making should be maintained?

The primary challenge is to ensure that principles, practice, systems and resources genuinely enable supported decision-making, so that substitute decision-making does not remain the “path of least resistance” in the face of limited time, risk-averse cultures and poor understanding of capacity. Substitute decision-making will likely always be needed as a safety net, but only as a true last resort where a person’s will and preferences cannot be identified despite sustained efforts to provide support, communicate in accessible ways and draw on the person’s life history, values and prior expressed wishes.

In practice, this means that substitute decision-making should be maintained only in tightly defined circumstances, for example:

  • Where a person has never expressed, and cannot now communicate, any reliable will or preferences about a particular type of decision, even with appropriate supports, communication aids, trusted relationships and time.
  • Where urgent action is required to prevent serious harm, and there is no reasonable opportunity to support the person’s participation in the decision.
  • Where a court or tribunal, applying a rights-based capacity framework, determines that substitute decision-making is necessary for specific decisions and for the shortest possible time, with regular review.

There is a real risk that supported decision-making will be applied only in a tokenistic way, with little practical change, as can already be seen in parts of the Aged Care Act 2024 implementation where “support” language is used but substitute decision-making practices remain common. To avoid this, clear statutory principles are needed that:

  • Presume every adult has decision-making capacity and can be supported to exercise it.
  • Require all practicable support to be tried and documented before substitute decision-making is considered.
  • Require any substitute decision-maker to act in accordance with the person’s will and preferences, using advance directives, prior statements and life history as guides, rather than relying on their own views of the person’s “best interests”.

Gate-keeping and oversight processes are critical. This could include: mandatory recording of why supported decision-making was not sufficient; time-limited and decision-specific appointments; accessible review mechanisms; and systemic monitoring by bodies such as the Ageing and Disability Commission and the Public Guardian. Education and guidance for those appointed under enduring powers of attorney, enduring guardianship and advance care directives are also essential, so that appointees understand their responsibilities within a supported decision-making framework rather than assuming a broad licence to decide “for” the person.

Finally, it is critical to invest in services that make supported decision-making feasible in everyday practice, such as independent advocates, peer support, culturally safe interpreters, and specialised assessment and communication services. Without resourcing, even well-designed legal frameworks will default back to substitute decision-making through inaction and systemic inertia.

Question 3. Have you had any experience with substitute decision-making, either as a decision-maker (including an informal arrangement) or with someone else making decisions on your behalf?

  • Yes [ ]
  • No [x]

Question 4: Not Applicable to RANSW.

Significant barriers remain in NSW to implementing supported decision-making consistently across legal, financial, health and care systems. One key barrier is a lack of sustained resourcing: authentic supported decision-making often requires time, relationship-building, accessible information, interpreters, advocates and interdisciplinary collaboration, yet these elements are rarely funded or embedded into service models. Short appointment times, workforce pressures, lack of staff training, stereotypes, bias and risk-averse cultures make it easier for professionals and organisations to default to substitute decision-making.

Another barrier is limited understanding and confidence among those who hold formal decision-making powers, such as attorneys, enduring guardians and statutory decision-makers, as well as among informal carers and family members. They are often given extensive responsibilities with little guidance on how to work “with” the older person rather than “for” them, especially where cognitive impairment or communication barriers exist. In health and aged care, variable capacity assessment practices and persistent stereotypes that equate age, disability or diagnosis (e.g. dementia) with incapacity further undermine supported decision-making.

Systemically, law and policy remain fragmented. While the Aged Care Act 2024 includes a supported decision-making model, state-based guardianship, financial and consent laws have

not yet fully aligned with a rights-based, will-and-preferences approach. This creates confusion about roles and obligations across jurisdictions and sectors. There are also gaps in accessible complaint and redress mechanisms for older people whose rights to participate in decisions are denied, especially for those in residential aged care, rural areas or marginalised communities, including Aboriginal and Torres Strait Islander elders and people from culturally and linguistically diverse backgrounds.

Question 6. Do you have ideas about how these barriers can be overcome?

To overcome these barriers, investment is needed in practical, relationship-based supports and training for all those involved in decisions with older people. This includes carers and family members, professionals who take instructions (e.g. legal, financial, health and aged care practitioners), and service managers and boards. Training should focus on rights-based principles, capacity assessment, challenging bias, culturally safe communication and concrete tools for implementing supported decision-making in everyday practice. This could be supported through practice guidelines, decision-making toolkits and case-based supervision.

Funding should be directed to processes that integrate supported decision-making with prevention of abuse and conflict resolution. Rights-based models such as elder mediation and elder care coordination provide promising frameworks for working with families where there are concerns about abuse, neglect or undue influence, while still centring the older person’s voice and will. These services need to be affordable, visible and available statewide, including in regional and remote communities.

RANSW has already participated in an interdisciplinary consortium focused on applied supported decision-making for older adults, bringing together legal, financial, neuropsychological and carer perspectives, and presenting this work at the National Elder Abuse Conference in 2022. Experiences from this and similar initiatives highlight common implementation challenges: cost barriers for clients, low awareness of available options and resistance from holders of substitute decision-making powers who are comfortable with the status quo. Addressing these challenges requires targeted public awareness campaigns, integration of supported decision-making expectations into funding contracts and quality standards, and leadership from regulators and commissioners making it clear that supported decision-making is the norm.

Finally, law reform should progressively embed supported decision-making obligations across NSW guardianship, financial and health consent laws, aligning them with the federal aged care framework and international human rights standards. This includes statutory recognition of support roles, duties to give effect to will and preferences, and strong safeguards and review rights when substitute decision-making is used.

Question 7. What role do you think the Ageing and Disability Commission can play in relation to supported decision-making?

First and foremost, the Ageing and Disability Commission (ADC) should ensure that supported decision-making is embedded in its own policies, investigations and service responses, including how it engages with older people and people with disability who may be experiencing

abuse or neglect. ADC officers should be trained and supported to work in ways that maximise the person’s participation in decisions about safety, interventions and remedies.

The ADC is well-placed to play an oversight and systemic leadership role in the use of substitute and supported decision-making across NSW. This could include monitoring patterns of guardianship and financial abuse referrals, identifying systemic misuse of substitute decision-making, and issuing guidance or recommendations to government, courts, tribunals and services. The ADC could also partner with advocacy, legal and community organisations to co-design public education campaigns that challenge ageism and ableism, promote supported decision-making and inform older people and families about their rights and options.

Over time, the ADC could contribute to the development of statewide practice standards for supported decision-making, support demonstration projects in diverse communities and report annually on progress and gaps. Linking this work with national reforms under the Aged Care Act 2024 and with the emerging international focus on the rights of older persons would help ensure coherence and momentum.

Question 8: Is there anything else you would like to share with us in relation to this Inquiry?

A substantial cultural shift is required if supported decision-making is to be realised in practice for older people in NSW. Ageism and ableism continue to drive both benevolent paternalism and, at times, serious abuse, particularly in health and aged care where older people’s reports and preferences are too often discounted or overridden. Recent work by the Australian Human Rights Commission on ageism in health care has documented how systemic assumptions about older people’s capacity and “worth” shape the care they receive and whether they are invited into decision-making at all.

Internationally, the absence of a dedicated UN Convention on the Rights of Older Persons has contributed to gaps and inconsistencies in how states protect older people’s rights, including their rights to equal recognition before the law and to exercise legal capacity with support. We welcome the Australian Government’s recent shift away from opposing such a Convention and the UN Human Rights Council’s resolution 58/13 establishing an Intergovernmental Working Group to commence drafting a new Convention on the Rights of Older Persons. This presents an important opportunity for Australia, including NSW, to show leadership by embedding supported decision-making for older people in domestic law and practice.

For organisations like those within the Elder Abuse Action Alliance, this moment offers a renewed mandate to push for rights-based, dignity-driven, respectful autonomy for all older people. This includes advocating for legal and policy reform, investing in practical supported decision-making tools and services, and amplifying the voices of older people with lived experience in all stages of design and implementation.

Nick Ludgate

General Manager, Client Services