Submission
No 3
SUPPORTED DECISION-MAKING IN NSW
Organisation: Family Advocacy
Date Received: 26 February 2026
Submission to the NSW Parliament’s Ageing and Disability Committee on Supported Decision-Making February 2026
“I felt like I had no say in my own life. Decisions were made for me, not with me.”
Witness description of being placed under guardianship in the Disability Royal Commission Hearing 6 (Guardianship)
“When I have the right support, I can make my own decisions. That’s what everyone else does.”
Self-advocate on the importance of will and preference in the Disability Royal Commission Hearing 6 (Guardianship)
Cecile Sullivan Elder, Executive Officer, redacted
Leanne Varga, Systemic Advocate and Campaigns Manager redacted
Family Advocacy (02) 9869 0866
Suite 704, 88-90 George Street, Hornsby, NSW 2077, Australia
Acknowledgement:
Family Advocacy would like to acknowledge the traditional custodians of the lands on which this report has been written, reviewed and produced, whose cultures and customs have nurtured and continue to nurture this land since the Dreamtime. We pay our respects to their Elders past, present and future. This is, was and always will be Aboriginal land.
Table of contents
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Table of contents
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Introduction
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Overview
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Terms of Reference
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g) other related matters
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Conclusion
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Acknowledgement of References
Introduction
Family Advocacy is a not for profit disability advocacy organisation that works across New South Wales (NSW) to advance and protect the rights and interests of people with developmental disability to live a meaningful inclusive life and have access to the same opportunities as the majority of Australians. This means being included in education, employment, and community with the right to live safely, with dignity, and free from violence, abuse, neglect or exploitation.
We were founded nearly 35 years ago by families whom work with, for, and on behalf of, people with disability. We continue to be governed by families and provide support in the following ways:
- Advocacy advice and advocacy information to individuals
- Advocacy development for family members of a person with disability
- Systemic Advocacy
We appreciate the opportunity to be able to provide a submission to the NSW Parliament’s Ageing and Disability Committee for this Inquiry on Supported Decision Making (SDM) in NSW. We believe we are in a good position to provide valuable feedback to the Committee due to the breadth and depth of our experience working alongside families of people with developmental disability to promote autonomy, inclusion, safeguards and systemic reform.
We regularly explore how other jurisdictions tackle these issues and accordingly, would welcome the opportunity for further discussion, and/or connect the Committee with prominent SDM international advocates.
Recommendations
- Embed a “Supported Decision-Making First” Principle in NSW Law
- Legally Recognise Supported Decision-Making Arrangements
- Strengthen the Role of the Ageing and Disability Commission
- Mandate Supported Decision-Making Training Across Systems
- Invest in Independent Advocacy and Family Capacity Building.
- Ensure Inclusion of People with Significant or Complex Disabilities
Overview
Broadly, Family Advocacy’s long-standing position is that safeguarding is strongest when autonomy is preserved. Overuse of substitute decision-making can entrench dependency, increase isolation, and heighten vulnerability to abuse or neglect. By contrast, investment in supported decision-making strengthens natural support networks, builds capability over time, and reduces the demand for intrusive state intervention. Legal capacity is inherent in personhood and should not be removed on the basis of perceived decision-making efforts.1 Prevention is more effective than post-harm investigation. Accordingly, substitute decision-making should function as a tightly constrained protective mechanism
1 Bach, M (2017) Legal Capacity, Personhood and Supported Decision-Making, Institute for Research and Development on Inclusion and Society (IRIS), Canada
within a broader NSW system that prioritises autonomy, relational support and preventative safeguarding.
SDM aligns NSW with international obligations. Australia ratified the United Nations Convention on the Rights of Persons with Disabilities (CRPD) in 2008. Article 12 recognises that people with disability have the right to equal recognition before the law and requires governments to provide access to the support necessary to exercise legal capacity. This obligation has been interpreted internationally as requiring a shift away from substitute decision-making toward supported decision-making that respects a person’s will and preferences.
In NSW, substitute decision-making is primarily governed by the Guardianship Act 1987, which does not establish a comprehensive supported decision-making framework. Embedding supported decision-making in NSW law would therefore give practical effect to Australia’s international human rights commitments and ensure guardianship is used only as a last resort and in the least restrictive manner, consistent with contemporary human rights standards.
In this context, the NSW Ageing and Disability Commission is uniquely positioned to shift the system from reactive safeguarding toward preventative, rights-based reform. While the Commission’s current functions are primarily directed toward responding to abuse, neglect and exploitation after harm has occurred, the evidence of the Disability Royal Commission makes clear that strengthening supported decision-making is itself a safeguarding mechanism. A system that preserves autonomy and embeds support reduces vulnerability to abuse, restrictive practices, financial exploitation and coercion. We will discuss this in more detail in d) and e) below.
Ensure Inclusion of People with Significant or Complex Disabilities
A supported decision-making framework in NSW must explicitly include people with significant or complex disabilities. Too often, reform discussions assume a level of verbal communication, cognitive processing or independence that excludes people with high support needs. In practice, this results in those with the most complex disabilities being the first to be placed under guardianship and the most likely to never have the opportunity of authentic SDM due to their complex communication and support needs.
The Disability Royal Commission made clear that legal capacity is universal and that support needs may vary in intensity, not in entitlement. Supported decision-making must therefore extend to people who communicate non-verbally, who require intensive daily support, or who rely on long-standing relational knowledge from family and trusted supporters to interpret will and preferences. Excluding this cohort from SDM risks reinforcing a two-tier system where autonomy is available only to those deemed “capable enough.”
Reform in NSW must ensure that supported decision-making models are adaptable, adequately resourced and relationally grounded so that people with significant or complex disabilities are not defaulted into substitute decision-making simply because appropriate supports have not been developed. The measure of a rights-based system is not how well it serves those with minimal support needs, but whether it meaningfully includes those with the highest support requirements.
Supported Decision-Making makes economic sense
Supported decision-making also presents a strong economic rationale for reform in NSW. Guardianship and financial management orders generate ongoing public expenditure through tribunal hearings, reports, reviews, statutory case management and, in some cases, long-term administration of a person’s affairs. As demand on NCAT, the Public Guardian and the NSW Trustee and Guardian increases, these costs compound over time. By contrast, investment in supported decision-making—through training, facilitation and independent advocacy—strengthens natural support networks and reduces reliance on formal state intervention. A structured “SDM first” approach operates as upstream cost avoidance: preventing unnecessary applications, shortening proceedings, limiting the duration of orders and reducing crisis-driven service responses. In this sense, supported decision-making is not an additional fiscal burden but a prudent preventative investment that can ease long-term pressure on guardianship, tribunal and service systems in NSW.
Terms of Reference
- a) the lived experience of people seeking to access appropriate support to make decisions for themselves
- b) barriers to implementing models for supported decision-making across legal, financial, health, education, employment and care systems in NSW
We do not see the need to revisit the lived experience in detail a) and b) due to the substantial body of lived experience evidence already examined by the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (DRC). Although we do provide case studies below. The DRC heard consistent and compelling evidence that SDM already operates informally in the lives of many people with disability through trusted family members, friends and community networks. However, these informal arrangements routinely fail at the point of institutional interaction because they lack legal recognition and systemic backing. Evidence demonstrated that guardianship and administration orders are too often pursued or imposed without all reasonable supported alternatives being properly explored or documented, resulting in outcomes that individuals experience as disempowering and exclusionary, with many reporting that decisions are made “about me, not with me.”
The DRC examined these dynamics across banking and financial services (where privacy and liability settings block supporters from accessing information), health and medical consent processes, education and training environments, employment settings, housing and accommodation services, and broader care systems. Across these domains, a recurring pattern emerged: risk-averse, authority-based practices default to substitute decision-making rather than investing in structured support. The evidence makes clear that the central barrier in NSW is not an absence of capacity, but an absence of recognised, enforceable and systemically embedded supported decision-making mechanisms. Legislative and policy reform is therefore required to mandate SDM as the default approach, ensure guardianship is demonstrably a last resort, and align NSW law with contemporary human rights standards.
At the same time, it is important not to present family involvement as uniformly protective or without complexity. While many families provide strong, rights-respecting support, there are circumstances where relationships are strained, capacity is limited, or conflicts of interest may arise. An effective SDM framework cannot simply assume that all family support is inherently safe or sufficient. Safeguards, access to independent advocacy, and oversight mechanisms must be embedded to ensure that support arrangements genuinely reflect the person’s will and preferences. This reinforces the need for intentional capacity building with families, particularly young families early in their child’s life, to foster autonomy, understand duty of care, recognise potential conflicts, and gradually build decision-making skills over time. Investment in structured family capacity building strengthens both autonomy and safeguarding, reducing the likelihood that substitute decision-making becomes the default later in life.
A recurring concern raised by families is that substitute decision-making by a public guardian necessarily occurs at a distance from the person’s lived relationships and history. Public guardians, while often acting with professionalism and good intent, do not typically have the depth of relational knowledge required to understand a person’s communication style, values, cultural context or long-standing preferences. Caseload pressures and administrative constraints further limit the capacity of statutory decision-makers to build and sustain meaningful relationships over time. The result can be decisions that are technically compliant but disconnected from the person’s will and preferences, leading to frustration, disengagement and diminished trust. This structural distance highlights why supported decision-making, grounded in trusted relationships and relational knowledge, is a more proportionate and person-centred safeguard in the majority of cases.
We must acknowledge the nexus between SDM and reducing restrictive practices. The Disability Royal Commission made clear that restrictive practices do not arise in a vacuum; they are frequently embedded within service cultures that prioritise control, risk management and compliance over autonomy and participation. The Commission heard that behaviours of concern often escalate in environments where individuals have little say over daily decisions, limited opportunity to express will and preferences, and minimal influence over the supports
they receive. In contrast, supported decision-making operates as a preventative safeguard by restoring agency and meaningful participation in decisions about living arrangements, healthcare, relationships, routines and risk. When a person experiences genuine choice and control, frustration and distress are less likely to manifest as behaviours that services then seek to “manage.” The Commission’s broader emphasis on dignity of risk, will and preferences, and least restrictive approaches underscores that reducing restrictive practices requires more than procedural oversight; it requires structural commitment to supported decision-making. Embedding supported decision-making across NSW systems therefore not only advances legal capacity and human rights compliance, but also directly contributes to reducing the incidence and perceived necessity of restrictive practices, another objective of the NSW government.
Case Study: The dangers of forced financial guardianship when a person with disability turns 18.
Jethro has turned 18 and could not open his own bank account. The bank is saying he has to apply for financial guardianship. His mum is an NDIS nominee and despite having to go through the robust process to put this into place, the bank would not allow her to open a bank account on her son’s behalf. This is a common story.
The developmental disability community are overrepresented in the Guardianship/Financial Management system, particularly as it relates to their decision- making capability being recognized by banking systems. Family Advocacy are working with the banking sector to how SDM might be used instead of financial management applications. We appreciate that appropriate safeguarding is key to the success of this shift, and the banking sector is obviously central to this systemic change.
For example, to avoid forced guardianship, which is very common once a young person with disability turns 18, Family Advocacy has been in discussions with the National Australia Bank looking into:
“The dangers of forced financial guardianship when a person with disability turns 18. We need greater recognition of other forms of supported financial decision-making.
What action would we like the bank to consider taking?
- Developing a Supported Decision-making Framework and perhaps following up with the NDIA so parents that are already the NDIS nominees could have a NDIS email confirming the same, and in this way avoid having to force unnecessary bureaucracy/ admin for parents or forced guardianship.
- Incorporate the recognition of alternative supporter relationships – such as existing NDIS nominee relationships i.e. ‘supportive guardianship orders’ and ‘supportive administration order’. Recognition would be limited to giving effect to the scope of the powers and duties and specific orders.
- NAB could incorporate within their policy, recognition of these relationships where they exist now and acknowledge where they may exist in future.
- Any proposed supporter of a person with a disability needs to be heavily vetted and ensure there is a degree of legal oversight of the relationship. Critically, it must retain the autonomy of the person with a disability.
Study: Negative consequences of forced guardianship
A young man with autism, complex communication needs and high support needs received a compensation pay out as a child $25k, with forced guardianship and monies being held by the NSW Public Trustee. The public guardian does not know this young man. The young man and his family have had no access to funds during this period and over 7 years, $7,000 has been taken in fees (28% of the compensation payout). Now a young adult, his sister has applied and been granted private trustee but still cannot access the funds for her brother. They need a bank account in the young man’s name but banks will not let him open an account in his
name. Seeking support from the Public Trustee has had no response – the money is still with the Public Trustee. The family want to give up Public trustee because it is so difficult.
Whether or not a person with disability can open a bank account in their name can have significant consequences for the person such as being funnelled directly to the NSW Guardian and Public Trustee. Over the last few years, the Public Trustee around Australia has come under scrutiny having no accountability, poor financial management such as unreasonably charging funds, not paying bills on time, not being responsive to requests of any kind including to end the Public Trustee as Guardian. See the article following the 4 corners expose. It was revealed, granted not in NSW but in Queensland, financial advice was given each year, and is charged to the person and the advice is essentially a carbon copy of the previous advice, which is to give the funds to the Public Trustee to invest. There does not appear to be a good monitoring process which can be problematic for people with disability and their families. Family Advocacy has taken part in a series of discussion with the National Australia Bank (NAB) to explore and discuss what they, as a service provider, can do to assist to overcome these barriers. We have suggested that perhaps if there was a solid safeguarding process already in place with NAB (or any bank for that matter) when the Public Trustee is challenged at NCAT, the family could use it to show strong evidence that the funds will be managed well etc.
For the Committee’s interest, we are also exploring in their Consumer Forum questions such as “What are the barriers that stop a person with high support needs from opening a bank account? Who makes this decision? Is it from a policy? Does the teller have the power to decide which is very subjective? People make negative assumptions about people with disability particularly cognitive disability. How can we ensure the staff at the bank are properly educated around disability competency/ human rights/ subconscious bias/prejudice around disability? We acknowledge there is a fine balance in wanting to provide safeguards to protect vulnerable people but at the same time it should not be blanket approach but rather a more nuanced approach which is person centred meaning getting to know the individual’s will and preferences, and communication mode, not making assumptions based on their disability label. Obviously, SDM plays an important role, in ensuring safeguards are there via the family or support person.
Personal Account:
“I think the thrust of this response regarding better recognition by financial and other bodies, for example health bodies, of already existing arrangements including NDIS nominee relationships is a good one. Imposing some sort of guardian arrangement over the top runs all sorts of risks of giving power to the wrong people who may act in a formulaic manner ignoring the nuances of an individual’s life and needs. At the very least it would make good decision making slower, clumsy and less certain.”
- Comment by parent of a young adult with disability about the problems forced guardianship brings and the need for service providers to offer SDM
c) the distinct experiences of and challenges faced by Aboriginal people and people from culturally and linguistically diverse backgrounds
We do not purport to hold specialist expertise in Aboriginal or culturally specific service design. However, as a statewide advocacy provider in NSW, we support Aboriginal people and people from culturally and linguistically diverse (CALD) backgrounds who are navigating guardianship, financial, health and service systems. The evidence before the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability demonstrated that First Nations peoples and culturally diverse communities experience heightened vulnerability within decision-making frameworks, including overrepresentation in substitute decision-making arrangements and longstanding mistrust of statutory
authorities arising from historical and ongoing systemic injustice.
The DRC’s Research Report, Diversity, dignity, equity and best practice: a framework for supported decision making (2023)2, emphasises the importance of cultural responsiveness, accessible communication, and intersectional approaches to reform. Further, the Final Report (2023), Volume 6: Enabling Autonomy and Access, Recommendation 6.6 (Supported Decision-Making Principles), requires that decision-making systems be culturally safe and reflective of community norms, including collective and kinship-based decision-making practices. Reform in NSW must therefore be co-designed with First Nations communities and culturally diverse communities to ensure supported decision-making models are not only legally compliant but culturally legitimate, trusted and practically accessible. Without this co-design, reform risks reproducing the very exclusion and paternalism it seeks to dismantle.
d) the role and functions of the Ageing and Disability Commission (the Commission) in relation to supported decision-making
e) possible changes to the functions of the Commission, including legislative amendments to the Act, to enhance supported decision-making
The functions of the NSW Ageing and Disability Commission, as established under the Ageing and Disability Commissioner Act 2019 (NSW) (the Act), are inherently aligned with the advancement of supported decision-making as a preventative safeguarding measure. The Commission’s mandate to promote dignity, autonomy and the rights of adults with disability and older people, and to identify systemic drivers of abuse and exploitation, provides a clear legislative foundation for a more proactive role in embedding supported decision-making across NSW systems. Legislative amendment to the Act could explicitly empower the Commission to promote, monitor and report on supported decision-making practices; issue guidance to government agencies, financial institutions and service providers; and collect data on the use of guardianship and administration orders to ensure substitute decision-making is demonstrably a last resort.
Such amendments would not represent a departure from the Commission’s safeguarding role, but rather a strengthening of it, thereby shifting the focus from responding to harm after it occurs to preventing vulnerability by preserving legal capacity, autonomy and supported participation in decision-making. When people retain decision making with appropriate support, they are less vulnerable to abuse and exploitation but also the sense of choice of control that comes Autonomy reduces isolation and the power imbalance. Informal support networks such as a family member or friend increase transparency and accountability.
Potential reform options could insert SDM as a statutory principle in the Act. This would explicitly require that all reasonable supports must be tried before substitute decision-making. In our opinion, the Commission ought to be given the power to adopt the SDM framework principles3 as set out in the box below, issue compliance recommendations, require reporting on SDM uptake, track guardianship trends, identify where SDM breaks down (for example, banking, health, education), recommend legislative reform. The Commission should also create a recognised SDM agreement framework which, similar to reforms in some US states and Canadian provinces, legally recognises SDM agreements, has clear scope of supporter authority and protection for third parties who rely on SDM arrangements.
2 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (2022), Diversity, Dignity and Equity: Evidence Review, Research Report; and Final Report (2023), Volume 6: Enabling Autonomy and Access, Recommendation 6.6. 3 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
Recommendation 6.6 of the DRC Final Report:
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.
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 the person, 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.
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.
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 cultural 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.
We note four of these 10 principles, Principles 1, 5, 6 and 7 were essentially recommended by the Australian Law Reform Commission National Decision-Making Principles back in 2014 and have been expanded4.
Supported Decision-Making Rights in Behaviour Support Policies
We bring to the Committee’s attention a recent examination by Robinson et al. (2025) of the extent to which Australian behaviour support policies reflect the right to supported decision-making under the Convention on the Rights of Persons with Disabilities.5 The authors argue that although policy frameworks increasingly reference autonomy, will and preferences, behaviour support systems often remain dominated by risk management, clinical control and restrictive practices rather than genuine supported decision-making.
The paper identifies a tension between safeguarding regimes and the obligation to respect legal capacity. It finds that behaviour support policies frequently prioritise harm prevention without adequately embedding mechanisms for supported decision-making, particularly for people with cognitive disability who are subject to restrictive practices. The authors conclude that behaviour support must be reframed through a rights-based lens, ensuring that supported decision-making is structurally embedded, culturally safe and operationalised in everyday practice rather than treated as aspirational language. We agree with this view and encourage the Committee to take this view into consideration.
f) measures to ensure that substitute decision-making is an alternative approach that is employed in appropriate and limited circumstances
From a Family Advocacy perspective, substitute decision-making must be understood as a failure of systems to provide adequate support, not as an inevitable response to disability. Consistent with the findings of the DRC, guardianship and administration should operate strictly as measures of last resort, applied only after all reasonable supported decision-making (SDM) options have been demonstrably explored, resourced and documented. The starting point must be the presumption of legal capacity and the recognition that many people can and do make decisions with support when that support is properly structured and recognised.
To ensure substitute decision-making is limited to appropriate circumstances, NSW reform should require: (1) a statutory “SDM first” principle embedded in guardianship legislation; (2) clear evidentiary requirements that decision-makers have actively attempted and exhausted supported alternatives before orders are made; (3) decision-specific, time-limited and regularly reviewed orders; and (4) independent advocacy access prior to and during any guardianship proceedings. Orders should be narrowly tailored and proportionate, restricting rights only to the minimum extent necessary.
In addition, legislative reform must be accompanied by mandatory training on supported decision-making across the guardianship system. Tribunal members, legal practitioners, health professionals, financial institutions, service providers and public guardians require structured education to shift practice away from default capacity testing and toward identifying and implementing appropriate supports. Without comprehensive training and cultural reform, substitute decision-making will continue to be applied prematurely, regardless of statutory safeguards. Embedding supported decision-making in professional standards, accreditation requirements and ongoing professional development is therefore essential to ensuring that guardianship truly functions as a last resort rather than a routine response.
g) other related matters
Invest in Capacity Building of the Person with Disability and their Family/ Supporters: The Power and Safety of Personal Relationships
A supported decision-making (SDM) framework in NSW must recognise that, for many people with disability, particularly those with developmental disability, family members are the primary and most enduring source of decision support. As parents have expressed:
5 Robinson, S., Fisher, K.R., Laurens, J., Fisher, A., Forte, S., Reschke, K. and Kayess, R. (2025) ‘Supported decision-making rights in behaviour support policies’, Australian Journal of Social Issues. Available at: https://doi.org/10.1002/ajs4.70070.
“Input from people associated with the person at a frequent level, both family and ancillary, should be taken into account.”
“…no one else knows better about the participant than the family.”
Families often hold deep, lifelong knowledge of the person’s communication style, values, vulnerabilities and aspirations. This relational knowledge cannot be replicated by episodic professional involvement. As Michael Kendrick has argued in The Natural Authority of Families, families are frequently the “natural authority” in the life of their family member and are uniquely positioned to provide authentic, rights-respecting support.
At the same time, any SDM framework must include safeguards. Supporters must act in good faith, promoting the autonomy, dignity and interests of the person being supported. Decision supporters should assist the person to pursue outcomes that reflect their will and preferences while balancing safety and wellbeing within the range of available options. Clear guidance, training and oversight are therefore essential to ensure supporters understand their responsibilities and potential conflicts of interest.
In practice, families are often the ones who establish informal but effective SDM structures such as circles of support and micro-boards. It is people who keep people safe. They are also frequently required to rebalance power dynamics in systems where professional services dominate the life of the person with disability. Without recognition and support for families, supported decision-making risks becoming a procedural reform rather than a lived reality.
For many families, however, the journey begins with strong professional messaging that their family member lacks decision-making ability. Repeated exposure to deficit-based assessments can unintentionally lower expectations and undermine confidence in the person’s capacity to express will and preferences. This culture must be countered through intentional peer support and structured capacity building so that families are equipped to recognise emerging decision-making skills, foster gradual autonomy, and confidently advocate for supported alternatives. When families are empowered with knowledge, coaching and connection to others who model values based and rights-based approaches, they are better positioned to uphold the will and preferences of their family member rather than defaulting to protective restriction.
We must acknowledge that informed choice develops over time. Decision-making capacity is strengthened through practice — beginning in childhood with small choices and gradually progressing to more complex decisions. People who have not been given opportunities to make choices cannot be expected to suddenly exercise autonomy in high-stakes contexts. You cannot assume people can make major choices after years of making no choices at all. People need practice, coaching and opportunity.6 And so do the families that support them to do so.
It is also important to mention, that in disability service systems, what is often described as “choice” or “decision-making” is frequently superficial and constrained by risk aversion and institutional control rather than genuine autonomy. But authentic choice develops through practice, relational support and dignity of risk, reinforcing the need for supported decision-making frameworks that enable meaningful participation rather than substitute control.7
People with severe or profound intellectual disability are often excluded from decision-making not because of incapacity, but because systems fail to invest in relational knowledge and communication support. Will and preferences can be expressed in non-verbal ways and that meaningful participation requires attentive supporters who listen, interpret respectfully and ensure the person’s responses shape decisions.8
6 Jeffrey l. Strully, Authentic Choice: Myths, Excuses and a Deepening Understanding of Choice, Belonging Matters – Thinking about…Decision Making, Issue 16, August 2013; John Armstrong, Thinking about decision making, Belonging Matters – Thinking about…Decision Making, Issue 16, August 2013 7 John Armstrong, Making the Most of Autonomy and Choice, Crucial Times, June 2007 8 Jo Watson, Listening to those rarely heard: Supporting people with severe to profound intellectual disability to participate in decisions about their lives, Belonging Matters – Thinking about…Decision Making, Issue 16, August 2013
Accordingly, reform in NSW should include explicit investment in building capacity for people with disability and their families/supporters. This includes education about supported decision-making, guidance on duty of care and conflicts of interest, and resources to support the gradual development of decision-making skills. Strengthening families as decision supporters is not inconsistent with safeguarding; rather, it is a preventative safeguard that places the person with disability firmly in the driver’s seat while ensuring safety, dignity and autonomy are upheld.
Independent Advocacy as a Foundational Safeguard for Supported Decision-Making
The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability concluded that independent disability advocacy is a foundational safeguard against violence, abuse, neglect and exploitation and is essential to the realisation of supported decision-making. In Recommendations 3.2, 3.3 and 3.4, the Commission called for the establishment of a nationally consistent disability advocacy program, significant and sustained increases in funding, and culturally appropriate advocacy for First Nations people with disability. The Commission found that independent advocacy enables people with disability to exercise their legal capacity, assert their will and preferences, access justice, and prevent unnecessary substitute decision-making, including guardianship. It emphasised that without accessible, properly resourced and genuinely independent advocacy, reforms to supported decision-making frameworks will not be effective in practice. Accordingly, any NSW reform agenda aimed at strengthening supported decision-making must include a parallel commitment to strengthening independent individual and systemic advocacy as a core component of safeguarding and prevention.
Other jurisdictions and the cultural shift needed
Canada - Michael Bach’s Contribution to SDM and Systemic Reform
Internationally, Michael Bach, Managing Director of the Institute for Research and Development on Inclusion and Society (IRIS), has been a leading architect of supported decision-making frameworks and a key contributor to global interpretation of Article 12 of the CRPD. His work emphasises that legal capacity is universal and that the appropriate question is not whether a person “has capacity”, but what supports are required for them to exercise it. This reflects the broader cultural reform required in NSW — shifting systems away from a default of “capacity testing” toward asking, “What supports are needed?” Embedding this cultural shift across legal, health, financial and care systems is essential if supported decision-making is to move from principle to practice. Michael has been part of an international advisory group supporting SDM reform initiatives in a number of jurisdictions such as Canada, Peru and Ukraine. Should it assist the Committee, we would welcome the opportunity to facilitate a connection with Mr Bach to share international expertise on implementing supported decision-making at a systemic level.
United States of America - Michael Kendrick’s Contribution to SDM and Systemic Reform
Over several decades, Michael J. Kendrick has been a leading international advocate for supported decision-making (SDM) as a rights-based alternative to guardianship. He argues that SDM preserves legal capacity and autonomy by enabling people, including those with cognitive or developmental disability, to make their own decisions with appropriate support rather than transferring authority to a substitute decision-maker.
Kendrick describes SDM as a structured process in which a person chooses trusted supporters, such as family members, friends or advocates, to assist them to understand information, consider options and communicate decisions. Supporters do not decide on the person’s behalf; they assist the person to exercise their own will and preferences. In this way, SDM formalises the relational supports that most people rely on when making complex decisions. By contrast, guardianship removes or limits a person’s decision-making authority. SDM therefore aligns with Article 12 of the United Nations Convention on the Rights of Persons with Disabilities, which recognises equal legal capacity and access to support in exercising that capacity.
Although Kendrick’s work has primarily been developed in the United States, it offers a practical roadmap for systemic reform. Pilot initiatives have involved collaboration with self-advocates, families and service providers, supported by training and advisory structures to ensure SDM is understood and operationalised before legislative
expansion. These initiatives have also informed legislative reforms recognising supported decision-making agreements in law, providing greater certainty for third parties such as banks and health providers. This approach formalises the natural interdependence that characterises decision-making for all people.
A central theme in Kendrick’s work is cultural reform. Systems must move away from asking whether a person “has capacity” and instead ask what supports are required for that person to exercise legal capacity. This shift requires education across legal, health, financial and community sectors. Without structural change and professional training, guardianship will continue to operate as the default response to perceived risk.
The principles emerging from Kendrick’s work are directly relevant to NSW. Supported decision-making must be person-centred, directed by will and preferences, grounded in natural support networks, flexible to individual circumstances and supported by safeguards and training. It must also be embedded in legislation and policy so that it functions as a meaningful alternative to guardianship. Systemic implementation in NSW would require legislative reform, professional education, accessible agreements and monitoring of guardianship trends to ensure substitute decision-making remains a genuine last resort.
Should it assist the Committee, we would welcome the opportunity to facilitate a connection with Mr Kendrick to share international expertise on implementing supported decision-making at a systemic level.
In addition to the matters addressed above, we submit that effective implementation of supported decision-making in NSW will require structural investment beyond legislative amendment alone. This includes sustainable funding for independent advocacy and supported decision-making facilitation; formal recognition of supporters in dealings with banks, health services, education providers and other third parties; mandatory professional training across legal, financial and service sectors; and improved data collection on the use of guardianship and administration orders to ensure substitute decision-making remains a genuine last resort. Consideration should also be given to establishing a state-wide supported decision-making framework that includes public guidance materials, model agreements, and culturally appropriate co-designed resources. Without coordinated system reform, supported decision-making risks remaining aspirational rather than operational. The opportunity before the Committee is not simply to adjust decision-making law, but to embed a preventative safeguarding architecture in NSW that strengthens autonomy, reduces reliance on restrictive practices and guardianship, and aligns state practice with contemporary human rights standards.
Conclusion
Supported decision-making represents a critical opportunity for NSW to strengthen safeguarding by preserving autonomy rather than restricting it. The evidence is clear: when people with disability, and including people with complex disabilities, are supported to exercise their will and preferences, vulnerability to abuse, exploitation and restrictive practices is reduced, natural relationships are strengthened, and reliance on intrusive substitute decision-making diminishes. Guardianship must remain a tightly constrained, last-resort mechanism within a broader system that prioritises support, inclusion and dignity.
This Inquiry presents an opportunity to move from reactive responses to harm toward a preventative, rights-based framework embedded across legal, financial, health, education and care systems. Legislative reform, cultural change, investment in independent advocacy and family capacity building, and clear recognition of supported decision-making arrangements are all necessary components of that shift.
The NSW Ageing and Disability Commission has a key role to play in driving this preventative, rights-based shift by promoting, monitoring and reporting on supported decision-making to ensure guardianship is used only in limited and appropriate circumstances. Family Advocacy urges the Committee to adopt a clear “SDM first” approach that gives practical effect to Australia’s human rights obligations and to the findings of the Disability Royal Commission. With thoughtful reform and structural investment, NSW can embed a supported decision-making architecture that strengthens autonomy, reduces unnecessary guardianship, and ensures people with disability live safely, with dignity, and as equal participants in their communities.
Acknowledgement of References
Armstrong, J (June 2007), Making the Most of Autonomy and Choice, Crucial Times
Armstrong, J, (2013) Thinking about decision making, Belonging Matters – Thinking about…Decision Making, Issue 16, August 2013
Australian Law Reform Commission (2014) Equality, Capacity and Disability in Commonwealth Laws, ALRC Report 124.
Bach, M & Kerzner, L (2010) A New Paradigm for Protecting Autonomy and the Right to Legal Capacity, Law Commission of Ontario.
Bach, M (2017) Legal Capacity, Personhood and Supported Decision-Making, Institute for Research and Development on Inclusion and Society (IRIS), Canada.
Endicott, O (2013) ‘Inclusion in Decision Making’, Belonging Matters – Thinking About… Decision Making, Issue 16, August 2013.
Kendrick, M (2006) The Natural Authority of Families, Centre for Welfare Reform.
Kendrick, M (various publications) Supported Decision-Making and Alternatives to Guardianship, Center for Public Representation (United States).
New South Wales (NSW) Ageing and Disability Commissioner Act 2019.
New South Wales (NSW) Guardianship Act 1987.
Robinson, S., Fisher, K.R., Laurens, J., Fisher, A., Forte, S., Reschke, K. and Kayess, R. (2025) ‘Supported decision-making rights in behaviour support policies’, Australian Journal of Social Issues.
Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (2023) Final Report, particularly Volume 6: Enabling Autonomy and Access.
Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (2023) Research Report – Diversity, dignity, equity and best practice: a framework for supported decision making.
Strully, J., (2013) Authentic Choice: Myths, Excuses and a Deepening Understanding of Choice, Belonging Matters – Thinking about…Decision Making, Issue 16, August 2013
United Nations (2006) Convention on the Rights of Persons with Disabilities (CRPD), Article 12.
United Nations Committee on the Rights of Persons with Disabilities (2014) General Comment No. 1 – Article 12: Equal Recognition Before the Law.
Watson, Jo, (2013) Listening to those rarely heard: Supporting people with severe to profound intellectual disability to participate in decisions about their lives, Belonging Matters – Thinking about…Decision Making, Issue 16, August 2013