OTA's Supported Decision Making in NSW Submission | External submission

Submission
No 29

SUPPORTED DECISION-MAKING IN NSW

Organisation: Occupational Therapy Australia (OTA)

Date Received: 13 March 2026

OTA’s Supported Decision Making in NSW Submission

Introduction

The Committee on Ageing and Disability is inquiring into supported decision-making for adults with disability and older people in NSW.

The inquiry will examine the role and functions of the Ageing and Disability Commission in relation to supported decision-making and consider options for enhancing the process of supported decision-making.

It will consider the lived experience of people seeking to access support to make decisions, including Aboriginal people and people from culturally and linguistically diverse backgrounds.
It will also consider measures to ensure that substitute decision-making is an alternative approach that is used only in appropriate and limited circumstances.

OTA Feedback

Occupational Therapy Australia (OTA) welcomes the opportunity to provide a submission to the committee on supported decision making in NSW. OTA is currently in the process of writing a Capability Framework for Working with Adults and shared decision making is discussed within this document in the following way:

The occupational therapist values and includes lived/living experience perspectives into their clinical process. This includes acknowledging past and current experiences of service provision, personal circumstances, progression of conditions and social and emotional factors. The occupational therapist understands that lived/living experience can interact on a sub-conscious level for the individual.
The occupational therapist ensures that a person’s lived/living experience informs current and future actions through shared decision making, respect for autonomy and the understanding that individuals are experts in their own lives.

Please view all of OTA’s capability frameworks for additional details and information. See link: https://otaus.com.au/capability-frameworks

OTA wishes for the committee to consider the following points about supported decision-making for adults with disability and older people in NSW.

Decision making

Family, friends and carers can contribute to decision making as both supported and substitute decision makers. There are multiple ways in which someone can be supported in their decision making.

These include informal arrangements and formal arrangements such as Power of Attorneys (POA), an Enduring Power of Attorneys (EPOA) and appointed Guardians.

Registered Support Role

The Registered Support role within the new Aged Care Act empowers older people to choose and register individuals to assist them with decision-making in their aged care.

This framework supports autonomy and ensures older people retain control over their lives, while also providing a clear legal structure for those offering support:

Focus on Autonomy: The new Act shifts the focus to the rights of older people, emphasizing their ability to make their own decisions.
Registered Supporters: Older people can choose one or more registered supporters to help them make and communicate decisions.
Supported Decision-Making: Registered supporters assist older people in making decisions, respecting their autonomy and ensuring they remain in control.
Legal Framework: The new Act provides a clear legal framework for registering supporters, clarifying their roles and responsibilities.
Support Options: Older people can choose from a variety of people they trust, including family members, friends, or professionals.
No Obligation: Older people are not required to register a supporter; they can choose to make their own decisions or seek support from informal sources.
Multiple Supporters: An older person can have multiple registered supporters, providing a flexible and personalized approach to support.
Duties of Registered Supporters: Registered supporters have duties they must uphold when supporting an older person in making decisions.

Existing Supports: People who are already providing support to an older person can become registered supporters or continue providing support without registration.
Decision-Making Authority: Some registered supporters may also have guardianship, enduring power of attorney, or similar legal authority, allowing them to make decisions on behalf of the older person in certain circumstances.

Supported Decision-Making

The revised Aged Care Act recognises supported decision-making as a fundamental principle that prioritises the older person’s autonomy and right to make their own decisions, even when they have some level of cognitive impairment or require assistance.

The revised Act recognises the role of “decision supporters” chosen by the older person. These could be family members, friends, or other trusted individuals who help the older person understand information and express their decisions.

It’s crucial for foundational OTs to understand the difference between supported decision-making and substitute decision-making (where another person has been appointed to makes the decision for the person). Supported decision-making aims to empower the older person to make their own choices, even with assistance. A substitute decision-maker, by comparison, would only be appropriate when the person lacks the capacity to make a specific decision, even with support.

Core Principles of Supported Decision-Making

Presumption of Capacity: The revised Aged Care Act strongly emphasises the presumption that every adult has the capacity to make their own decisions. This means that a person should not be assumed to lack capacity solely based on age, disability, or diagnosis.
Right to Make Own Decisions: Older people have the right to make decisions about their care, including where they live, the services they receive, and how those services are delivered. This right should be upheld and supported to the greatest extent possible.
Support to Make Decisions: The focus shifts from substitute decision-making (where someone else makes the decision for the person) to supporting the older person to make their own decisions. This involves providing the necessary information, assistance, and resources to enable them to understand, weigh options, and communicate their choices.
Individualised Support: The type and level of support required will vary for each individual based on their cognitive abilities, communication preferences, and the complexity of the decision.

Maximising Participation: The goal is to maximise the older person’s participation in decision-making processes, even if they require significant support.
Respecting Will and Preferences: The older person’s current and past will and preferences should be central to the decision-making process.

Supporters with Legal Authority

Power of Attorney

A Power of Attorney is usually established when the older person is still able to make decisions for themselves.

The authority issued to a Power of Attorney will only continue whilst the older person continues to have capacity to make decisions. A general power of attorney ceases to be effective if the older person loses capacity.

Role of a Power of Attorney

A Power of Attorney (POA) is useful for managing affairs while the older person retains decision-making capacity, particularly for temporary situations or specific tasks.

Managing Finances Temporarily: A POA can be useful if an older person is temporarily unable to manage their financial affairs due to illness, injury, or while travelling (e.g., during a hospital stay or a short respite period). The appointed attorney can pay bills, manage bank accounts, and handle other financial matters related to their care and accommodation.
Specific Transactions: A POA can be granted for a specific purpose, such as selling a property to fund aged care costs or managing a particular investment related to their care. Once that transaction is completed, the power may cease.
Assisting with Administrative Tasks: An attorney under a standard POA can assist with tasks like signing documents related to aged care services, communicating with providers, or managing paperwork, as long as the principal understands and consents to these actions.
Acting on Preferences While Capable: While the principal still has capacity, a POA can ensure their expressed preferences regarding certain aspects of their potential future care are acted upon by a trusted person.

Because it ceases upon loss of capacity, a standard POA cannot be used to make ongoing decisions about the person’s long-term care, accommodation, or significant medical treatments if they no longer have the capacity to consent themselves.

Enduring Power of Attorney (EPOA)

An Enduring Power of Attorney (EPOA) is a legal document that allow someone to act on your behalf to make decisions regarding financial and/or personal matters like lifestyle and healthcare decisions.

The key characteristic that makes it “enduring” is that the power granted continues even if the person being represented loses the capacity to make their own decisions in the future due to illness, injury, or cognitive decline.

Role of an Enduring Power of Attorney (EPOA)

An EPOA is a crucial legal tool in the context of aged care, ensuring that if an older person loses the capacity to make their own decisions, someone they trust can make important decisions related to their care and well-being.

Here are some specific ways it might apply:

Choosing and Arranging Aged Care Services: The attorney can make decisions about the type of aged care services the principal receives, whether it’s home care packages, residential aged care placement, or other support services.
Managing Finances for Aged Care Costs: The attorney can manage the principal’s finances to pay for aged care fees, accommodation costs, medical expenses, and other related expenses. This ensures continuity of care without financial disruption.
Making Decisions about Accommodation: If residential aged care is required, the attorney can make decisions about which facility the principal will reside in, considering their needs and preferences (as far as known).
Consenting to Medical Treatment (depending on the state/territory): In some jurisdictions, the EPOA may grant the attorney the power to consent to or refuse medical treatment on the principal’s behalf if they lack the capacity to do so themselves. In other states, this requires a separate appointment (e.g., Enduring Guardian).
Making Lifestyle Decisions: The attorney can make decisions about the principal’s daily routine, social activities, and other aspects of their life within an aged care setting, always aiming to uphold their dignity and best interests.

Communicating with Aged Care Providers: The attorney acts as the primary point of contact with aged care providers, ensuring clear communication and advocating for the principal’s needs.
Ensuring the Principal’s Wishes are Respected: A well-chosen attorney who understands the principal’s values and wishes can ensure that decisions made on their behalf align with what the principal would have wanted.
Avoiding Guardianship Applications: Having a valid EPOA in place can often prevent the need for a potentially more complex and intrusive application to a guardianship tribunal for the appointment of a government-appointed guardian or administrator.

In essence, an Enduring Power of Attorney provides a framework for substitute decision-making in aged care, empowering a trusted individual to act in the best interests of an older person who has lost the capacity to make their own decisions, ensuring their care, finances, and well-being are managed appropriately. It’s a vital aspect of future planning for older people.

Important things to know about POAs and EPOAs

Who Can Be an Attorney: The attorney must be an adult (usually over 18), have the capacity to make their own decisions, and be someone the principal trusts. More than one attorney can be appointed, and the principal can specify whether they must act jointly or severally (independently).
Commencement of POA or EPOA: The principal can specify when the POA or EPOA comes into effect. It can be immediately or upon loss of capacity in the case of an EPOA, but the specific rules and options might have minor variations between jurisdictions.
Legal Requirements: Each Australian state and territory has specific forms and legal requirements for creating a valid EPOA, including witnessing requirements. It’s often recommended to seek legal advice when creating an EPOA due to its significant legal implications.
Not a Medical Treatment Decision Maker (in some states): In some states (like NSW), the EPOA primarily covers financial and legal decisions however in other states (like Queensland and the ACT) they allow an EPOA to include personal and healthcare decisions. Separate documents, like an Enduring Guardian or Advance Care Directive, are used to appoint someone to make medical treatment and healthcare decisions. It’s crucial to understand the specific laws of your state or territory.

Safeguards: Attorneys have a legal responsibility to act in the principal’s best interests, honestly, and with reasonable diligence. They must also keep accurate records of any transactions made on the principal’s behalf and avoid conflicts of interest.

Guardian

A Guardian is a person appointed by a state or territory government tribunal or court to make personal, lifestyle, and healthcare decisions for an adult who has lost the capacity to make these decisions for themselves. The guardian may be a family member or friend or may be an appointed public guardian.

Guardianship orders are made for a specific period and are subject to review by the relevant tribunal. The guardianship continues as long as the person lacks the capacity to make their own decisions, and the order remains in place.

Role of a Guardian

A guardian is a person appointed by a state or territory government tribunal or court to make personal, lifestyle, and healthcare decisions for an adult who has lost the capacity to make these decisions for themselves.

Important things to know about Guardians

Financial Decisions: Generally, a guardian cannot make decisions about financial or property matters unless they are also appointed as the person’s attorney under an EPOA or as a financial administrator by a separate order.
Principal’s Capacity: Guardianship is only invoked when a person has already lost the capacity to make their own decisions. Unlike POAs and EPOAs, the person does not appoint their guardian while they have capacity.
Appointment Process: A guardian is appointed by a tribunal after an application is made, and the tribunal assesses the person’s capacity and determines if a guardian is necessary and who would be the most suitable person. This often involves input from medical professionals, family, and other relevant parties.
“Guardian of Last Resort”: In situations where there is no suitable family member or friend to act as guardian, a public guardian (an officer of the state or territory) may be appointed.

Advanced Care Directive (ACD)

An Advanced Care Directives (ACD) is a legal document that allows an individual to make decisions about their future healthcare and end-of-life care when they no longer have the capacity to do so themselves.

These directives outlined instructions on how a person might want to be cared for or the types of services they wish to receive or refuse both presently and into the future.

Important things to know about Advanced Care Directives (ACD)

An ACD allows the older person to formally appoint someone they trust to be their substitute decision maker. Substitute decision makers are legally and ethically obligated to make decisions that align with:

The older person’s expressed wishes in the ACD.
The older person’s values and beliefs, if known.
What they believe the older person would have wanted if their wishes are unclear.
The older person’s best interests, if the above are not known or applicable or if the ACD doesn’t cover a specific situation.

If an individual doesn’t have a valid ACD appointing an substitute decision maker, each state and territory in Australia has legislation that outlines a hierarchy of who can be a legally recognised substitute decision maker (usually a spouse, followed by adult children, parents, siblings, etc.). The substitute decision makers authority to make decisions only comes into effect when the principal loses the capacity to make those decisions themselves.

An ACD differs from other legal substitute decision making arrangements like Enduring Power of Attorney (EPOA) as the scope of the authority is targeted to healthcare decisions.

There are two types of Advance Care Directives:

Common Law Advance Care Directives governed by the common law (i.e. decisions made by the Courts), and
Statutory Advance Care Directives governed by State and Territory legislation.

To learn more about Advanced Care Directives and other legal considerations in end of life aged care visit the End of Life Law in Australia(opens in a new tab) website or complete the End of Life Law for Clinicians(opens in a new tab) Aged Care training.

Legal, ethical and communication considerations for working with older people and their substitute decision makers

To ensure you’re effectively contributing to the care and well-being of the older person you’re working with and collaborating ethically and legally with their substitute decision-makers consider the following:

Verify the existence and scope of the appointment

Sight documentation that confirms the current authority arrangements, when the authority commenced or is due to commence, if there are multiple people appointed to act jointly (all together) or severally (independently) and what the authority covers i.e. financial matters, personal/lifestyle decisions and/or healthcare decisions (in accordance with state and territory law).

Understand the authority’s limits

Establish what can and cannot be decided on by the appointed authority as agreed, in accordance with the appointment type, and allowed by state/territory law.

Best interests principle

Understand the legal obligations of attorneys and guardians to act in the best interests of the older person. Understand that the OT’s role is to contribute information to help inform those decisions, focusing on the person’s functional abilities, goals, and well-being.

Respect legal precedence

A formally appointed attorney or guardian has the legal authority to make decisions within their scope, even if other family members or the OT might have different opinions. Recognise the responsibility and often the emotional burden carried by the attorney or guardian.

Be aware of potential conflicts of interest

Be mindful of any potential conflicts of interest the attorney or guardian might have and report any concerns through appropriate channels.

Know reporting obligations

Understand your professional and legal obligations to report any concerns about the safety, well-being, or potential abuse or neglect of the older person, regardless of who holds the POA, EPOA, or guardianship.

Identify and communicate with the appointed person(s)

Establish clear lines of communication with the attorney(s) or guardian(s). Communicate respectfully and collaboratively by actively soliciting the attorney’s/guardian’s insights into the older person’s history, preferences, values, and what they believe would be in their best interests.

Understand their preferred method of communication and ensure they are kept informed about the older person’s OT assessment, goals, progress, and any recommendations. Use plain language to explain OT assessments, interventions, and their potential benefits to the older person and how they align with the goals of care identified by the attorney/guardian. Avoid jargon.

Documentation

Maintain clear and accurate documentation of all communication and decisions involving the attorney or guardian, including the rationale behind OT recommendations and how they align with the person’s best interests.

Be mindful of confidentiality

While sharing necessary information with the attorney/guardian is essential, always adhere to privacy and confidentiality principles regarding the older person’s information, sharing only what is relevant to their role in decision-making.

Cultural sensitivity

Be aware that cultural backgrounds can influence family dynamics and decision-making processes involving POAs, EPOAs, and guardians. Approach communication with sensitivity and respect for diverse perspectives.

Address disagreements professionally

If there are disagreements between the OT’s recommendations and the attorney’s/guardian’s decisions, engage in respectful dialogue, explain the clinical reasoning behind your recommendations, and seek to find a mutually agreeable solution that prioritises the older person’s best interests. If a resolution cannot be reached and you have significant concerns about the person’s well-being, follow organisational policies and potentially seek further guidance.

Capacity assessment

Having decision-making capacity means being able to understand what is happening with a situation, knowing how your choices will affect it, being able to make decisions, and then being able to communicate those decisions clearly. Decision-making capacity may require assessment if people are considered to be making unsafe decisions and are thought to have issues with their cognition.

Occupational therapists may contribute to capacity assessments as part of a multidisciplinary team, particularly where concerns about independent living, driving, and finances are involved. Occupational therapists may conduct parts of the assessment.

Capacity is a legal concept and is not related to the outcomes of the choices made or people’s performance in day-to-day activities. A person may have capacity in some areas of decision making but not others. Capacity is assumed until proven absent.

Capacity is important because:

People without capacity may be at risk of harm or of being taken advantage of.
People who have capacity must have their decisions respected even if they make unsafe decisions.
Capacity is required for legal and medical decision making.
People without capacity cannot give informed consent for things such as the sharing of information. Under the OT Australia Code of Ethics(opens in a new tab), the disclosure of confidential information is only permissible if the person gives informed consent.

Evidence of incapacity can be seen where a person with cognitive impairment cannot understand:

The risks they face,
What the potential consequences of their decisions may be,
What other potential choices might be and the risks that may be caused by those choices OR,
That beliefs impacting their decisions are delusional.

The assessment of capacity Is usually conducted by a multidisciplinary team and Involves six key steps:

(Select the hotspots to reveal t he text)

Diagram adapted from Darzins (2000)25

Occupational therapy role in capacity assessment

As an occupational therapist working at a foundational level you may be asked to complete occupational performance assessments to identify if a risk to the person exists due to their inability to make decisions (Step 3). You may be asked to assess if there is a risk based on the way that your client performs a task and identify what other ways the task could be performed that could reduce the risk.

You may also assist in identifying factors that may impact the performance of the task and contribute to the person’s decision including the person’s values, goals, identity, preferences, and environment.

About Occupational Therapy Australia

OTA is the peak membership body representing occupational therapists nationally. We empower and elevate over 34,000 exceptional professionals who in turn work in partnership with individuals and communities to enable meaningful participation in the activities of life. We’re the single, unifying connection point for occupational therapists in the nation, leading the profession through education, support, and advocacy, so every OT is informed, inspired and fulfilled in their profession.

As one of Australia’s largest allied health workforces, occupational therapists provide essential supports across primary care, aged care, disability, mental health, veteran care and more.

Next Steps

OTA is available to brief the committee, NSW Government and departmental advisers on this submission. We are available at policy@otaus.com.au

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This Guideline sets out the actions needed to develop and approve an OTA Position Statement. It also provides a framework for the Position Statement document to ensure comprehensiveness and clarity.