Submission
No 31

SUPPORTED DECISION-MAKING IN NSW

Organisation: \ Australian Federation of Disability Organisations (AFDO)

Date Received: \ 16 March 2026

SUPPORTED DECISION-MAKING FOR ADULTS WITH DISABILITY AND OLDER PEOPLE IN NSW

NSW Parliament Committee on Ageing and Disability

13 March 2026

AFDO author and contact:

Matthew Hall
National Manager - Systemic Advocacy & Policy
redacted

Reviewed and approved:

Ross Joyce
Chief Executive Officer

Contents

• Acknowledgements

• Language used in this document

• About AFDO

• 1. Acronyms and abbreviations
• 2. Executive summary

• 3. Existing substituted decision regimes in NSW

  • 3.1 Guardianship Act

  • 3.2 Trustee Act

  • 3.3 Powers of Attorney

  • 3.4 Litigants

  • 3.5 Voluntary assisted dying

  • 3.6 Mental capacity generally

• 4. Obligations under international human rights treaties

  • 4.1 Obligations under the CRPD

  • 4.2 Australia’s declaration in relation to Article 12

  • 4.3 Rights of older persons

  • 4.4 NSW’s obligations under the CRPD and ICCPR

• 5. Existing Australian frameworks

  • 5.1 ALRC recommendations

  • 5.2 La Trobe’s best practice framework

  • 5.3 DRC recommendation 6.6

• 6. No constitutional issues

Australian Federation of Disability Organisations (AFDO) Ltd is registered as a charity with the Australian Charities and Not for profit Commission. It is also a Public Benevolent Institution, endorsed by the Australian Taxation Office as a Deductible Gift Recipient. A donation of $2.00 or more is tax deductible.

Consent to publication: Australian Federation of Disability Organisations (AFDO) consents to the publication of this submission, including the names and contact details of AFDO staff. The relevant AFDO staff also give that consent.

© 2026, Australian Federation of Disability Organisations (AFDO) Ltd

A.B.N. 25 105 510 898

CC BY-NC-SA (version 4.0): AFDO publishes, distributes, and otherwise makes available its advocacy and policy materials, including this submission, under a Creative Commons licence.

This licence allows any person to distribute, remix, adapt, and build upon the material in any medium or format for non-commercial purposes only, and only if AFDO is credited as the creator of the material. If you remix, adapt, or build upon the material, you must also license your modified material under identical terms.

The CC BY-NC-SA (version 4.0) licence includes the following elements:

• BY: You must give appropriate credit, provide a link to the licence, and indicate if any changes have been made. You may do so in any reasonable manner, but not in any way that suggests AFDO endorses you or your use.
• NC: You must not use the material for commercial purposes.
• SA: If you remix, transform, or build upon the material, you must distribute your contributions under this licence.

No additional restrictions: You must not apply legal terms or technological measures that restrict others from doing anything permitted under this licence.

Acknowledgements

Aboriginal and Torres Strait Islander people

Australian Federation of Disability Organisations (AFDO) acknowledges Aboriginal and Torres Strait Islander people as the First Peoples and traditional custodians of the land now called Australia. We recognise their deep and continuing connection to Country and community. We pay our respects to the traditional custodians of Country where we work, connect, or meet, which always was, and always will be, Aboriginal land. We also pay our respects to Elders past, present, and emerging.

People with disability

AFDO acknowledges people with disability in all their diversity, particularly those individuals who have experienced or are continuing to experience violence, abuse, neglect, or exploitation. We also acknowledge their families, carers, supporters, and representative organisations and express our thanks for the continuing work done by the many people supporting, protecting, and advancing the rights of people with disability.

Language used in this document

AFDO has chosen to use person-first language (like “people with disability”) in this document. Person-first language puts the person before the disability and values the individual by seeing them as a person, not a condition. This aligns with the CRPD and matches the language used by all governments in Australia. Most other Australian disability peaks also use person-first language.

We recognise many people with disability prefer identity-first language. Disability is a part of their identity and shows a connection to their community and pride in disability. Views on language reflect people’s identities, experiences of disability, and community attitudes. It is a matter of individual choice and agency. AFDO respects everyone’s right to choose how to describe their identity and experiences.

About AFDO

Since 2003, the Australian Federation of Disability Organisations (AFDO) has been the pre-eminent national peak for people with disability, championing their rights through our extensive member organisation network uniquely representing both disability-specific and cross-disability population-based communities with a reach of over 4.5 million Australians.

We are, firstly, a Disabled People’s Organisation (DPO), led, governed, and predominantly staffed by people with disability. We are also a Disability Representative Organisation (DRO) funded by the Australian government. Our member organisations are national disability-specific peak bodies, other disability-specific advocacy and support organisations, and population based disabled people’s organisations. This ensures that our work is informed by lived expertise and experience, truly representing our communities.

AFDO is a strong, trusted voice for the disability sector. We advocate on national policy, inquiries, and initiatives with the Federal and state and territory governments. We work to build a community where people with disability:

• have real participation in community life
• can build respectful, valued relationships
• participate socially and economically, and
• contribute as valued citizens.

Our vision

All people with disability can take part equally in all aspects of social, economic, political, and cultural life.

Our mission

Using the strength of our member organisations to harness the collective power of uniting people with disability to change society into a community where everyone is equal.

Our strategic objectives

• To represent the interests and united voice of our members and people with disability at a national and international level in all relevant forums.

• To build the capacity, profile, reputation, and sustainability of AFDO through the strength of our member organisations.
• To enhance the connection and influence in international disability initiatives by policy, advocacy, and engagement, focused on the Asia Pacific region.

Our members

AFDO’s member organisations contribute to the national policy agenda and address issues that impact the lives of people with disability in Australia. We understand that disability-specific organisations play a key role in the provision of information and peer support to people with disability and their families. This role keeps them closely connected to their grassroots communities. Each community has its peak organisation that uses its voice to advocate on issues.

Information about AFDO’s members can be found on our website.

1 Acronyms and abbreviations

This list of terms may assist users of this document to understand what we mean when we use the following terms or abbreviations.

or lessen obligations under the treaty

under the CRPD or any other international treaty, and

state is a reference to a state within a federated national system. This includes the Crown in the right of the state of New South Wales.

2 Executive summary

AFDO thanks the Committee for the invitation to provide a submission on supported decision-making for adults with disability and older people in NSW, viewed through the lens of human rights principles, and assessed from the perspective of a social model of disability that is person-centred.

We note that the inquiry’s Terms of Reference require the Committee to undertake its inquiries with particular reference to:

(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 NSWs

(c) the distinct experiences of and challenges faced by First Nations’ people and people from culturally and linguistically diverse backgrounds

(d) the role and functions of the Commissioner in relation to supported decision-making

(e) possible changes to the functions of the Commissioner, including legislative amendments to the Act, to enhance supported decision-making

(f) measures to ensure that substitute decision-making is an alternative approach that is employed in appropriate and limited circumstances, and

(g) other related matters.

We have provided a number of recommendations in response to the Committee’s consultation and adoption of these would advance the human rights of people with disability and older people in NSW, and make our society more inclusive and equitable.

In summary:

1. AFDO calls on the Committee to:

   A. adopt the CRPD’s interpretation of Article 12 of the CRPD, and

B. recognise that NSW’s substituted decision‑making regimes for people with disability (including those included in section 3) are inconsistent with, and in breach of the state’s obligations under Article 12.

2. AFDO calls on the Committee to:

   A. recognise that every older person in New South Wales is entitled to the right to be recognised as a legal person and has legal capacity on an equal basis with others and, consequently, has the right to make decisions about their own life

   B. recommend that the Parliament adopt Article 12 of the CRPD as the basis of the proper expression of those rights for older people in NSW, and

   C. recognise that NSW’s substituted decision‑making regimes for older people (including those included in section 3)are inconsistent with Article 12 of the CRPD and are in breach of the state’s obligations under Articles 16 and 26 of the ICCPR.

3. The Committee to recommend a supported decision-making framework that is consistent with Article 12 of the CRPD and has all the following essential features:

   • a presumption of decision-making ability
   • respect for the person’s will and preferences,
   • free from conflict of interest,
   • tailored to the individual,
   • proportional and time‑limited
   • include safeguards to prevent abuse, and
   • regular review by a competent, independent, and impartial authority or judicial body.

4. AFDO urges the Committee to:

   A. recommend that the NSW Parliament enshrines in NSW law the fundamental right of older people and people with disability in New South Wales:

   (i) to make decisions that affect their lives and to have those decisions respected, and

(ii) to have access to the necessary supports to assist them to exercise that right, through a legislated framework for supported decision making.

B. recommend a supported decision-making model for older people and people with disability that:

  (i) adopts the model, principles and guidelines, and incorporates the concepts of “Supporter” and “Representative”, and the safeguards recommended by the Australian Law Reform Commission (ALRC)

  (ii) is consistent with and applies the principles and includes the elements of the La Trobe best practice framework, and

  (iii) is consistent with and applies the principles recommended by the Disability Royal Commission (DRC) in its recommendation 6.6, and

C. recommend to the Parliament that, to the extent there is any inconsistency between the DRC principles, the La Trobe principles and best practice framework, and the ALRC model, guidelines, and principles, the DRC principles are to be given preference.

5. The Committee to recommend that the Parliament legislates to replace the various tests at common law for “mental incapacity” (as the basis on which a substituted decision-maker can make a decision for a person) with a single, uniform, codified test for when a Representative can decide on behalf of a person, which is only in a situation where the person’s will and preferences and what they would likely want cannot be determined.

6. The Committee to recommend that the Parliament amends:

   A. the Guardianship Act

   B. the Trustee Act, and

   C. the CPA Act, and the UCPR,

   to:

   D. replace the principles in each Act with principles consistent with the ALRC model, the La Trobe principles, and the DRC principles

   E. replace the concepts of “best interests” or “safeguarding” with the will and preferences of the person

F. include roles and responsibilities of Supporter and Representative to the roles of guardian, manager, and tutor (as the case may be)

G. replace the concepts of “legal incapacity” and “mental incapacity” as the benchmark for authorising a Representative deciding for a person with the situation where the person’s will and preferences and what they would likely want cannot be determined.

7. The Committee to recommend that the Parliament amends the POA Act to:

   A. replace the concepts of “best interests” or “safeguarding” with the will and preferences of the person

   B. remove the concepts of mental incapacity at the time the power is given or mental incapacity at the time the relevant act is done.

8. The Committee to recommend that the Parliament amends the VAD Act to expressly authorise supported decision-making by an “eligible person” that:

   A. adopts the model, principles and guidelines, and incorporates the concepts of “Supporter” and “Representative”, and the safeguards recommended by the ALRC

   B. is consistent with and applies the principles and includes the elements of the La Trobe best practice framework, and

   C. is consistent with and applies the principles recommended by the Disability Royal Commission in its recommendation 6.6

9. The Committee to recommend that:

   A. the Department of Communities and Justice revises and updates the Capacity Toolkit, and

   B. the Law Society of New South Wales revises and updates its practical guide for solicitors

   so that each document:

   C. aligns with the model, principles and guidelines, and incorporates the concepts of “Supporter” and “Representative”, and the safeguards recommended by the ALRC

D. is consistent with and applies the principles and includes the elements of the La Trobe best practice framework, and

E. is consistent with and applies the principles recommended by the Disability Royal Commission in its recommendation 6.6.

10. The Committee to recommend that the Parliament amends the Act to give the Commissioner powers to:

A. maintain a register of appointed Supporters and Representatives, and set requirements for registration, including national police checks

B. monitor, or appoint independent monitors to oversee, the conduct of Supporters and Representatives

C. receive and publish reports provided under the supported decision-making framework

D. develop a quality and safeguarding framework

E. to respond to instances of abuse, neglect or exploitation

F. co-design with people with disability, older people, and their representative organisations, and make available,

  i. supports for supported decision-making

  ii. resources to help Supporters and Representatives understand their roles and responsibilities

  iii. resources to help government departments and agencies their roles and responsibilities

  iv. resources to help people with disability and older people understand the supported decision-making framework, and

  v. resources for Supporters and Representatives to help them assist people to develop their own decision-making capabilities.

.

3 Existing substituted decision regimes in NSW

In this section, we identify some of the relevant NSW laws and processes that operate to deny older people and people with disability agency and legal capacity, based on “legal incapacity” or lack of “mental capacity”. However, we do not assert that this is an exhaustive or comprehensive list of all NSW laws that may be affected by any change to the law to provide for supported decision making in NSW. Changes to other laws may also be necessary if the Committee adopts our recommendations in this submission.

3.1 Guardianship Act

Any adult in NSW may appoint an enduring guardian4, but any guardianship only takes effect when the appointor is a “person in need of a guardian”.5 The Tribunal also has the power to appoint a guardian. An application can be made by the person, the Public Guardian, or any person with a genuine concern for the welfare of the person.6

A person in need of a guardian means

a person who, because of a disability, is totally or partially incapable of managing his or her person.7 (our emphasis)

This Act treats disability functionally, in that the disability must impair the person’s ability to manage their personal affairs. It does not, however, define or list any types or categories of disability.

The guardian has a duty “with respect to persons who have disabilities to follow the following principles:

(a) the welfare and interests of such persons should be given paramount consideration

(b) the freedom of decision and freedom of action of such persons should be restricted as little as possible

…

(d) the views of such persons in relation to the exercise of those functions should be taken into consideration.8 (our emphasis)

A direct consequence of being placed under guardianship is the loss of legal capacity of the person.9 The guardian has custody of the person to the exclusion of any other person, and has all the functions of a guardian of that person that a guardian has at law or in equity.10

The guardian may make personal, non-financial decisions for the person.

Management of financial affairs is dealt with under the Trustee Act. For completeness, we note the Tribunal has the power to make orders for financial management of a person’s estate in connection with making or refusing to make a guardianship order.11 Those orders, however, are made under the Trustee Act. This is discussed in section 3.2.

3.2 Trustee Act

The Trustee Act gives the power to the Supreme Court to order that the estate of a person who is incapable of managing his or her affairs is to be managed under this Act.12

Every person exercising functions under the chapter “with respect to protected has a duty to follow the following principles:

(a) the welfare and interests of such persons should be given paramount consideration

(b) the freedom of decision and freedom of action of such persons should be restricted as little as possible

…

(d) the views of such persons in relation to the exercise of those functions should be taken into consideration.13 (our emphasis)

The NSW Trustee has, and may exercise, in respect of the estate of a managed person:

(a) all functions necessary and incidental to its management and care, and

such other functions as the Supreme Court or the Tribunal (in the case of a person under guardianship) may direct or authorise the NSW Trustee to have or exercise.14

In managing an estate, the NSW Trustee does so in a protective capacity15. This distinguishes its role exercising the special statutory powers to protect people who cannot manage their own financial affairs from its role when acting as a trustee or executor. This protective capacity represents

a means by which the state of NSW endeavours to perform the protective function of the Crown in taking care of individuals who cannot take care of themselves. 16 (our emphasis)

The NSW Trustee has a duty to safeguard the estate of the vulnerable person. Its focus is the best interests, welfare, and financial security of the protected person.

The NSW Trustee does not act on personal instruction from the managed person.

It is our view that this approach, and the “protective” philosophy that underpins it is paternalistic, patronising, intrusive and disempowering.

3.3 Powers of Attorney

The POA Act provides for prescribed, irrevocable, and enduring powers of attorney. A prescribed (or general) power of attorney confers on the attorney the authority to do on behalf of the principal (that is, the person appointing the attorney) anything that the principal may lawfully authorise an attorney to do.17 This power of attorney is valid until the principal loses capacity to make informed decisions. .An irrevocable power of attorney is not revoked or terminated and remains effective despite the “mental incapacity” of the principal, or the principal becoming a “mentally incapacitated person”.18 An enduring power of attorney is expressly given with the intention that it will continue to be effective even if the principal lacks capacity through “loss of mental capacity” after signing the document.19

A power of attorney is not ineffective only because any act within the scope of the power was beyond the understanding of the principal through mental incapacity at the time the power is given.20 Further, a power of attorney remains effective to the extent that it concerns any act within its scope that is of such a nature that is not beyond the understanding of the principal through mental incapacity at the time of the act.21 An

act done by an attorney that is within the scope of the power conferred by an enduring power of attorney that is beyond the understanding of the principal through mental incapacity at the time of the act is as effective as it would have been if the principal understood the nature of the act at that time.22

A person acting under a power of attorney owes fiduciary duties to the appointor and must:

(a) always act in the principal’s best interests, putting the principal’s interests ahead of their own personal interests

spend funds for the principal’s benefit

act honestly, and

avoid conflicts between their own interests and the principal’s interests.

The Supreme Court may confirm any power to do an act under a power of attorney if it appears to the Court that:

(a) the nature of the act was not beyond the understanding of the principal through mental incapacity at the time when the power was given23, or

(b) the principal is incapable of affirming the power because:

(i) the principal lacks capacity by reason of the continuation of mental incapacity that affected the principal when the principal gave the power, or

(ii) the principal is incommunicate, and

(c) it is for the benefit of the principal that the power is confirmed.24

A person is incommunicate if—

(a) the person suffers from any physical or mental incapacity (whether of a temporary or permanent nature) that makes the person unable

(i) to understand communications respecting the person’s property or affairs, or

(ii) to express the person’s intentions respecting the person’s property or affairs, or

(b) the person is unable to receive communications respecting the person’s property or affairs because the person cannot be located or contacted.25

3.4 Litigants

A person under a “legal incapacity” may not commence or carry on proceedings, including defending proceedings, except by a tutor.26: A person under legal incapacity does not need a tutor to be a group member in representative proceedings. However, the person may only take a step in representative proceedings, or conduct part of the proceedings, by a tutor.27 The tutor is answerable to the other party for the costs of the litigation.28 A tutor is also liable for the costs of the legally incapacitated person’s legal representation and is entitled to be indemnified by the legally incapacitated person for any costs reasonably and properly incurred in litigation.29

A person under a legal incapacity is any person who is under a legal incapacity in relation to the conduct of legal proceedings (other than person who is in custody as a result of having been convicted of, or found to have committed, a serious indictable offence) and, in particular, includes

(c) a person under guardianship within the meaning of the Guardianship Act 1987, and

(d) a protected person within the meaning of the NSW Trustee and Guardian Act 2009, and

(e) an incommunicate person, being a person who has such a physical or mental disability that he or she is unable to receive communications, or express his or her will, with respect to his or her property or affairs.30

The Supreme Court also has an inherent power under its parens patriae jurisdiction to appoint a tutor for the purposes of litigation where there may be doubt as to whether a person’s mental state falls within the statutory definition of “persons under legal capacity”.

A person may become a tutor without the need for any formal instrument of appointment or any order of the court31, but a tutor can only be changed by an order of a court.32 Any person, but not a corporation, may be a tutor unless the person is:

• a person under a legal incapacity
• a judicial officer, a registrar or any other person involved in the administration of a court
• a person who has an interest in the proceedings adverse to the interests of the person under legal incapacity.33

However, in proceedings with respect to the estate of a person whose estate managed under the Trustee Act, the tutor must be the person who is managing the estate.34

A tutor gets their authority from the Court, not the person they represent. A tutor may do anything that the rules allow or require the incapable party to do in the conduct of the proceedings – effectively the tutor controls the litigation, makes forensic decisions, and gives instructions to the legal advisor. A tutor must:

(a) avoid any conflict of interest with the person under legal incapacity,

act in the interests of the person under legal incapacity in how the case is conducted and safeguard the interests of the incapable person, and

act as an officer of the Court when representing that person in litigation. 35

It is important to note that whilst the UCPR, are “uniform” rules, NSW can amend the UCPR without consent of any other state. The “uniform” in UCPR reflects a cooperative scheme and a common template developed through inter-jurisdictional consultation but each participating jurisdiction makes and amends its own rules under its own civil procedure legislation. In NSW, the UCPR are made (and amended) as rules of court under the CPA.

In practice, the government may consult with other jurisdictions and aim to preserve harmonisation, but that is a matter of policy and comity.

3.5 Voluntary assisted dying

Section 4 of the VAD Act sets out principles to which a person exercising a function under that Act must have regard. Those principles include:

• a person’s autonomy, including autonomy in relation to end of life choices, should be respected36, and

• a person has the right to be supported in making informed decisions about the person’s medical treatment and should be given, in a way the person understands, information about medical treatment options, including comfort and palliative care and treatment37.

The VAD Act does not create or provide for any process for substituted decision-making. It does empower the Supreme Court, in a review application, to decide if the patient has or does not have decision-making capacity in relation to voluntary assisted dying.38 The Court has no power to substitute a decision of a patient with another decision. Apart from the reference to the right to support, the VAD Act does not provide for any express supported decision-making process.

A person is not eligible for access to voluntary assisted dying (VAD) unless the person has “decision-making capacity” in relation to VAD.39 A patient has decision-making capacity in relation to VAD if the patient has the capacity to:

(a) understand information or advice about a voluntary assisted dying decision required under the VAD Act to be provided to the patient

remember the information or advice referred to in paragraph (a) to the extent necessary to make a voluntary assisted dying decision

understand the matters involved in a voluntary assisted dying decision

understand the effect of a voluntary assisted dying decision

weigh up the factors referred to in paragraphs (a), (c) and (d) for the purposes of making a voluntary assisted dying decision, and

communicate a voluntary assisted dying decision in some way.40

A patient is presumed to have:

(a) the capacity to understand information or advice about VAD if it reasonably appears the patient is able to understand an explanation of the consequences of making the decision, and

decision-making capacity in relation to VAD unless the patient is shown not to have the capacity.41

The Commissioner may receive reports about older people or adults with disability who are believed to be subject to, or at risk of abuse in connection with VAD. Reports may raise concerns that (among other things):

• an older person or adult with disability is subject to undue pressure or duress to access VAD
• an older person or adult with disability is subject to undue pressure or duress in being prevented from accessing VAD
• an older person or adult with disability is not acting voluntarily, or
• a witness or interpreter for an older person or adult with disability accessing VAD will benefit from the adult’s death.42

The Commissioner’s approach in handling reports relating to VAD is consistent with how the Commissioner handles other reports. The Commissioner primarily handles reports about abuse of older people and adults with disability relating to family members, informal carers, and community members. Its focus is on understanding the “views and wishes” of the older person or adult with disability and upholding their rights.43

3.6 Mental capacity generally

There is no single legal definition of mental capacity in New South Wales. The legal definition depends in each case on the type of decision which is being made or the type of transaction involved. Some are in legislation (for example, the Guardianship Act). Others have been developed in common law, (for example, the test for capacity to make a will. The result is that a person may have the mental capacity to make some decisions, but may lack the mental capacity to make other decisions.44

A finding of incapacity in one area does not automatically mean that mental capacity is lacking in another area. The Supreme Court has found that a person who is incapable of managing their financial affairs may still be mentally capable of making a will45. A person may not be capable on managing their affairs but have the mental capacity to make an enduring power of attorney.46 A person may not have the mental capacity to make a contract but have capacity to make a will.47

The fundamental issue is whether the person can understand the general nature of what they are doing.48

The tests at common law, and many of the tests in legislation, do not recognise any right of the person to support to make a decision. They deny legal capacity based on assessments of mental capacity.

The Capacity ToolKit49 includes several principles that allow for a “useful, practical and flexible approach to exploring issues of mental capacity”50 according to individual circumstances. However, these principles are not legislated or prescribed in any way. They are a helpful aid only. The principles are:

1. Always presume a person has mental capacity
2. Mental capacity is decision-specific
3. Mental capacity is fluid
4. Don’t make assumptions that a person lacks capacity because of their age, appearance, disability or behaviour
5. Assess a person’s decision-making ability – not the decision they make
6. Respect a person’s privacy
7. Substitute decision-making is a last resort

An explanation of the last principle acknowledges that a person may be able to make a particular decision at a certain time because they have support during the decision-making process. Good practice includes ensuring that everything possible has been done to support the person to make a decision.51

4 Obligations under international human rights treaties

4.1 Obligations under the CRPD

Article 12

The CRPD confirms every person with disability has the right to be recognised as a legal person52 and legal capacity on an equal basis with others and, consequently, the right to make decisions about their own life.53 Every person with disability has legal personality (that is, the right to be recognised as a person before the law) and legal agency (that is, the right to make decisions and have those decisions respected and

abided by others) simply by virtue of being human. The right to make decisions includes decisions about:

• finances
• healthcare
• living arrangements
• relationships, and
• everyday choices.

It also includes the right to make decisions that another person might think is a “bad” decision, and the right and dignity to take risks.

Further, States must provide access to support for decision-making for people with disability who need or would like assistance to make a decision and exercise their right to legal capacity.54 All measures related to the exercise of legal capacity must also include appropriate and effective safeguards to prevent abuse. Any supports must:

• respect the person’s will and preferences
• be free from conflict of interest
• be proportional and tailored to the person,
• include safeguards to prevent abuse, and
• be regularly reviewed by a competent, independent, and impartial authority or judicial body.55

General Comment No. 1

General Comment No. 1 explains that Article 12 is a “paradigm”56 shift from paternalistic models to rights‑based autonomy and clarifies the obligations of a State to recognise that persons with disability enjoy legal capacity on an equal basis with others, and to provide effective supported decision‑making frameworks or models.

General Comment No.1 makes it clear that equality before the law is a basic human right, and is essential for the full enjoyment of all other rights. Article 12 requires that people with disability must be recognised as persons before the law and as legal agents on an equal basis with others. Further, all people with disability have legal

capacity at all times, regardless of disability type or perceived decision-making ability.57

Supported decision making is not substituted decision-making.58

Legal capacity must not be denied on the basis of disability59.

It is also critical to recognise that legal capacity and mental capacity are distinct concepts. Legal capacity is the ability to hold rights and duties (legal standing) and to exercise those rights and duties (legal agency). Legal capacity is the key to accessing meaningful participation in society. Mental capacity refers to a person’s decision-making skills of a person. These skills vary from person to person, and may also be different for any given person depending on many factors, including environmental, social, and political factors. The concept of mental capacity is highly controversial in and of itself. It is commonly presented as an objective, scientific and naturally occurring phenomenon. It is not.60 Article 12 makes it clear that “unsoundedness of mind” and other discriminatory labels that are applied because of perceived or actual deficits in mental capacity are not legitimate reasons for the denial of legal capacity.61

The concepts of mental capacity and legal capacity must not be conflated. Where a person is considered to have impaired decision-making skills, often because of a cognitive or psychosocial disability, the person’s legal capacity is consequently removed, because of:

• the diagnosis of an impairment (status approach)
• where a person makes a decision that is considered to have negative consequences (outcome approach), or
• where a person’s decision-making skills are considered to be deficient (functional approach).

In all of those approaches, a person’s disability or decision making skills are taken as legitimate grounds for denying legal capacity and lowering their status as a person before the law. What needs to happen, under Article 12, is, in the absence of any necessary mental capacity, a person’s legal capacity remains unchanged, but governments must ensure that appropriate measures are available to provide access by people with disability to the support they may require in exercising their legal capacity.

Support

“Support” is a broad term that encompasses informal and formal support arrangements, that can be of varying types and intensity. General Comment No. 1 provides some helpful (and not exhaustive) examples, including:

• choosing one or more trusted support persons to assist in exercising legal capacity for certain types of decisions
• peer support
• advocacy (including self-advocacy support)
• assistance with communication
• measures relating to universal design and accessibility, including requiring private and public organisations (such as banks and financial institutions) to provide information in understandable and accessible formats to enable a person with disability to perform the legal acts required to open a bank account, conclude contracts or conduct other financial or social transactions, and
• the development and recognition of diverse, non-conventional methods of communication.62

While examples are useful, it is also important to remember that the type and intensity of support to be provided will vary significantly from one person to another. This will be due to the diversity of people with disability. Supports must be designed and used to show “respect for difference and acceptance of [people with disability] as part of human diversity and humanity”63.

Support must also include support to help a person with disability to plan in advance and be able to state their will and preferences that are to be followed at a future time when they may not be able to communicate their wishes to others. All people with disability have the right to engage in advance planning and must be allowed to do so on an equal basis with others. States can provide various forms of advance planning mechanisms to accommodate various preferences, but all the options must be non-discriminatory. The point in time at which an advance directive operates (and ceases) must be a free and fully informed decision of the person and included in the text of the directive. It cannot be based on or determined by an assessment by someone else that the individual lacks capacity.64

At all times, including in crisis situations, the individual autonomy and capacity of people with disability to make decisions must be respected.65

“Will and preferences”, not “best interests”

Systems that remove a person’s ability to make decisions about or that affect the person’s life (for example, the appointment of a guardian under the Guardianship Act to make personal, non-financial decisions for a person or under Chapter 4 of the Trustee Act to manage a person’s financial affairs) as a substitute decision-maker breach Article 12 because they:

(a) rely on assessments of “mental capacity” to deny legal capacity

replace a person’s will with “best interests” judgments of the substituted decision maker, and

deny equal recognition before the law.

The “will and preferences” of the individual is the central, guiding principle. The DRC defined “will” as

larger life goals, political perspectives, emotional and spiritual development and views, gender and sexual identity. ‘Preferences means choices regarding day-to-day activities, aesthetic preferences, and similar.66

The extent to which (for adult decision‑making) a decision is in the person’s “best interests” is irrelevant. It is essential, as recognised by the Disability Royal Commission, that all people with disability must be given the right and dignity to take risks67 and make mistakes.

Where a person’s will and preferences are not immediately ascertainable, the supported decision-making process must determine, and apply, the “best interpretation of will and preferences,” not the “best interests” of the person.68

4.2 Australia’s declaration in relation to Article 12

When Australia ratified the CRPD, it made an interpretative declaration as to its understanding of Article 12. A State is entitled to make a declaration that:

(a) explains how the State interprets certain CRPD obligations

(b) signals how the State intends to implement those obligations in domestic law, and

(c) guides treaty monitoring bodies and other States in understanding the State’s position.

It is important to remember that a declaration does not change any legal obligations under the CRPD and cannot limit or negate rights guaranteed by the Convention.

In the declaration, Australia

recognizes that persons with disability enjoy legal capacity on an equal basis with others in all aspects of life. Australia declares its understanding that the Convention allows for fully supported or substituted decision-making arrangements, which provide for decisions to be made on behalf of a person, only where such arrangements are necessary, as a last resort and subject to safeguards.69 (our emphasis)

Across multiple reporting cycles, the CRPD Committee has been consistent in its assessment of and response to this interpretative declaration.70 The CRPD Committee rejects Australia’s interpretation of Article 12 and considers it is a political statement that is legally ineffective insofar as it contradicts the Convention’s object and purpose. The CRPD Committee has repeatedly called on Australia to:

• withdraw the interpretive declaration
• abolish substitute decision‑making regimes, and
• replace substitute decision‑making regimes with supported decision‑making frameworks.

The Disability Royal Commission (Commissioners Bennett, Galbally, Mason and McEwin) also recommended that the Australian Government withdraw the interpretative declaration in relation to Article 12 of the CRPD.71

The Australian government’s initial response to the DRC recommendation in July 2024 was that the recommendation required further consideration by the government. The government advised that it

is committed to fulfilling its obligations under the Convention on the Rights of Persons with Disabilities (CRPD) to promote,

protect and ensure the full and equal enjoyment of the rights of people with disability in Australia.

Australia recognises that persons with disability enjoy legal capacity on an equal basis with others in all aspects of life. Currently, Australias interpretative declaration to the CRPD states that the Convention allows for fully supported or substituted decision-making arrangements, which provide for decisions to be made on behalf of a person, only where such arrangements are necessary, as a last resort and subject to safeguards.72(Our emphasis)

In the government’s most recent progress report73, the government reaffirmed that substituted decision-making is permitted by Article 12, as a last resort and subject to safeguards. It further advised that the government will revisit the interpretative declaration following the work in collaboration with states and territories to consider embedding the Disability Royal Commission’s supported decision-making principles74 into relevant legislation and policy

AFDO does not agree that Article 12 permits substituted decision-making. We also agree with recommendation 6.6 of the Disability Royal Commission. We do not agree that the recommendation requires any further consideration by the government. We will continue to urge the Australian government to withdraw the declaration.

However, irrespective of the Commonwealth’s view, and whether the declaration is revised or withdrawn, we urge the Committee to recommend to the Parliament, and the NSW Parliament to adopt, the CRPD Committee’s interpretation of Article 12.

NSW must recognise that its substituted decision‑making regimes are inconsistent with, and not authorised by. Article 12. Further, NSW must implement a system for supported decision making to support people with disability to make their own decisions when support is needed. Consistent with Article 12, that system must:

• respect the person’s will and preferences,
• be free from conflict of interest,
• be tailored to the individual,
• be proportional and time‑limited
• include safeguards to prevent abuse, and
• be regularly reviewed by a competent, independent, and impartial authority or

judicial body.

4.3 Rights of older persons

Currently, there is no United Nations treaty that confirms the human rights of older people in particular, equivalent to the CRPD (although one is under consideration)75.

The rights of an older person to make decisions about or that affect their life are the human rights that every individual has, as recognised and confirmed by the ICCPR.76

Australia became a signatory to the ICCPR in 1972, and ratified the covenant in 1980, after it entered into force on 23 March 1976.77

It is important to note that the ICCPR does not contain any provisions similar to those in the CRPD on supported decision‑making as a necessary support for autonomy and agency. It also does not reject substitute decision‑making models explicitly, in the same way as the CRPD.

Despite:

(a) the lack of formal, express provisions under international human rights law recognising the fundamental human rights of older people to supported decision making systems and processes when support is needed, and

no guidance on the fundamental requirements of a supported decision making system and processes,

AFDO urges the NSW government to ensure consistency of treatment between people with disability and older people, and consistency of supported decision making principles and processes. This approach is equitable and fair, with consistent means and levels of protection of individual autonomy. Perhaps, more importantly, a single, consistent system reinforces the principle that decision‑making support is a right, and not a special arrangement. It also makes clear that age or disability should not determine whether someone is respected as a legal decision‑maker.

Inconsistencies or differences in approach increase risks of discrimination, unnecessary substitute decision‑making, and rights violations. Cognitive impairment does not change its nature based on age. Separate frameworks create unequal treatment and particularly disadvantage people who are both ageing and living with disability.

Consistent, rights‑based supported decision‑making promotes will and preferences, proportional safeguards, and transparency, and reduces the risk of misuse of power across both aged care and disability contexts.

A single approach reduces complexity for people with disability, older people, their families, kin and carers, the Commissioner’s staff, and health, aged care, disability, and justice systems, supporting better professional practice and clearer consent processes. It will also mean that a single, unified body of jurisprudence will develop, providing greater clarity, consistency, and understanding.

This uniformity and consistency will be increasingly important over time, as Australia’s population ages, and the number of older people with disability increases, given that the prevalence of disability increases with age. In 2011 the Australian Institute of Health and Welfare indicated that

After around 50 years of age the prevalence of disability rose considerably, from 20% in the 50–54 years age group to more than 80% among people aged 85 years or over. Rates of severe or profound core activity limitations were even more strongly associated with ageing. This degree of disability was reported for fewer than one in 20 Australians up to the age of 55 years (excluding the peak in boys aged 10–14 years), but almost one-third of people aged 75 years or over.78

2022 data from the Australian Bureau of Statistics79 shows a 3.7% increase in the number of Australians with disability, from 2018 (increasing from 17.7% to 21.4%, which is 5.5 million Australians). It is also important to consider the ages of our community. 15.0% of people aged 0-64 years are people with disability. This is to be compared with 52.3% of people aged 65 years and over. Further, the number of Australians aged 65 years and over also increased, to 17.1% (up from 15.9% in 2018; 12% in 1994). This is projected to increase to 24% by 2064–65.80 As of 2022, 39.8% of older Australians living at home needed some assistance with everyday activities.

With the Australian population ageing, we anticipate a similar (or higher) increase in the number of Australians (and older Australians) with disability the next time the ABS releases its “Disability, Ageing and Carers, Australia: Summary of Findings”.

In addition, the increase in older people with disability, including the onset of dementia and related conditions, will mean defining and assessing capacity, as well as consistency across jurisdictions, and cohorts will become increasingly important.

4.4 NSW’s obligations under the CRPD and ICCPR

New South Wales is not a State Party to the CRPD or the ICCPR. Australia is the relevant State Party under both treaties. However, New South Wales does have obligations under those treaties, and under Article 12 of the CRPD and Articles 16 and 26 of the ICCPR in particular.

The CRPD makes it clear that in federal systems, like the Australian federation, the convention applies to “all parts of federal states without any limitations and exceptions.”81 The ICCPR does not include a corresponding provision.

Each of the states and territories must act consistently, and in compliance, with the obligations under the CRPD. Where disability‑related functions are within the jurisdiction of the states82, the states must ensure their laws in respect of those matters comply with the CRPD. As a result of how legislative power is distributed in our federation, a state has legal, political, and practical responsibility for implementing and protecting many of the rights recognised by Article 12 of the CRPD and (we assert) Articles 16 and 26 of the ICCPR.

Recommendation 1

AFDO calls on the Committee to:

A. adopt the CRPD’s interpretation of Article 12 of the CRPD, and

B. recognise that NSW’s substituted decision‑making regimes for people with disability (including those included in section 3) are inconsistent with, and in breach of the state’s obligations under Article 12.

Recommendation 2

AFDO calls on the Committee to:

A. recognise that every older person in New South Wales is entitled to the right to be recognised as a legal person and has legal capacity on an equal basis with others and, consequently, has the right to make decisions about their own life

B. recommend that the Parliament adopt Article 12 of the CRPD as the basis of the proper expression of those rights for older people in NSW, and

C. recognise that NSW’s substituted decision‑making regimes for older people (including those included in section 3)are inconsistent with Article 12 of the CRPD and are in breach of the state’s obligations under Articles 16 and 26 of the ICCPR.

Recommendation 3

The Committee agrees that a supported decision-making framework that is consistent with Article 12 of the CRPD has all the following essential features:

• a presumption of decision-making ability
• respect for the person ’s will and preferences,
• free from conflict of interest,
• tailored to the individual,
• proportional and time‑limited
• include safeguards to prevent abuse, and
• regular review by a competent, independent, and impartial authority or judicial body.

5 Existing Australian frameworks

5.1 ALRC recommendations

In 2014, the Australian Law Reform Commission undertook a comprehensive review of equality, capacity, and disability in Commonwealth laws. The ALRC’s final report83 made 55 recommendations for reform that will better provide people with disability equal recognition before the law - in particular, in relation to the right to make decisions that affect their lives and to have those decisions respected.

National Decision-Making Principles84, developed by the ALRC to guide reform at a national level, are at the heart of the recommended reforms that shift the focus away from ‘best interests’ decision-making to a focus on ‘wills, preferences and rights’. The ALRC recommended that the reform of relevant state laws is consistent with the following principles:

• Principle 1: The equal right to make decisions

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

• Principle 2: Support

  Persons who require support in decision-making must be provided with access to the support necessary for them to make, communicate and participate in decisions that affect their lives.

• Principle 3: Will, preferences and rights

  The will, preferences and rights of persons who may require decision-making support must direct decisions that affect their lives.

• Principle 4: Safeguards

  Laws and legal frameworks must contain appropriate and effective safeguards in relation to interventions for persons who may require decision-making support, including to prevent abuse and undue influence.

These principles reflect the “paradigm shift” signalled in the CRPD (and noted above) to recognise people with disability as persons before the law and their right to make choices for themselves. They emphasise the autonomy and independence of persons

with disability who may require support in making decisions—their will and preferences must drive decisions that they make, and that others make on their behalf.85

The principles are supported by three sets of guidelines.

A key recommendation was to establish a new Commonwealth decision-making model based on new positions of ‘supporter’ and ‘representative’ (and part of building a new lexicon for supported decision-making). Under this model, both supporters and representatives assist people who need decision-making support to make decisions in relevant areas of Commonwealth law.86 The recommended model would introduce mechanisms for the appointment of ‘supporters’ for adults who may require decision-making support, and provisions relating to ‘representatives’ to address circumstances in which a person may desire, or require, someone else to make decisions for them.

In the “Wills, preferences and rights guidelines,87 the ALRC provides greater clarity about the distinction between a supporter and a representative and full emphasis to will and preferences in decision-making. In communicating will and preferences, a person is entitled to communicate by any means that enable them to be understood and their cultural and linguistic circumstances recognised and respected. Where a representative is appointed to make decisions for a person who requires decision-making support:

• (a) the person’s will and preferences must be given effect
• where the person’s current will and preferences cannot be determined, the representative must give effect to what the person would likely want, based on all the information available, including by consulting with family members, carers and other significant people in their life
• if it is not possible to determine what the person would likely want, the representative must act to promote and uphold the person’s human rights and act in the way least restrictive of those rights, and
• a representative may override the person’s will and preferences only where necessary to prevent harm.

We note that the last point is inconsistent with the third principle of recommendation 6.6 of the Disability Royal Commission, discussed in section 5.3.

Supporter

A person who requires decision-making support should be able to choose to be assisted by a supporter, and to cease being supported at any time. Where a supporter is chosen, ultimate decision-making authority remains with the person who requires decision-making support. Supported decisions should be recognised as the decisions of the person who required decision-making support.88

It is essential that the person who requires decision-making support exercises choice and control over their supporter. Only the person supported must have the authority to choose a supporter and have the power to suspend or revoke the arrangement at any time.89

In assisting a person who requires support to make decisions, a supporter must have the power and ability to:

• (a) obtain and disclose personal and other information on behalf of the person, and assist the person to understand information
• provide advice to the person about the decisions they might make
• assist the person to communicate the decisions, and
• endeavour to ensure the decisions of the person are given effect.90

Supporters must, to the extent reasonable in the circumstances and as desired by the person being supported91:

• (a) support the person to make decisions
• support the person to express their will and preferences in making decisions
• act in a manner promoting the personal, social, financial, and cultural wellbeing of the person
• act honestly, diligently and in good faith
• support the person to consult, as they wish, with existing appointees92, family members, carers and other significant people in their life in making decisions, and
• assist the person to develop their own decision-making ability.93

The ALRC recognised that assisting a person to develop their own decision-making ability, while important, is potentially a complex task. In addition, the identity of the supporter will affect their ability to develop the person’s capacity, as will resource constraints. As a result, there is also an important role of the state to provide resources to develop people’s decision-making ability.94

To date, the Commonwealth has not taken any steps to implement the ALRC model.

Representative

A representative assists a person who requires support to make decisions or, where necessary, makes decisions on their behalf that are in accordance with the person’s will and preferences and may:

• (a) obtain and disclose personal and other information on behalf of the person, and assist the person to understand information
• provide advice to the person about the decisions that might be made
• communicate the decisions, and
• endeavour to ensure the decisions made are given effect.95

A representative must, to the extent reasonable in the circumstances:

• (a) support the person to make decisions or make decisions on their behalf reflecting their will and preferences
• where it is not possible to determine the will and preferences of the person, determine what the person would likely want based on all the information available
• where (a) and (b) are not possible, consider the person’s human rights relevant to the situation
• act in a manner promoting the personal, social, financial and cultural wellbeing of the person
• act honestly, diligently and in good faith
• consult with existing appointees96, family members, carers and other significant people in their life in making decisions, and
• assist97 the person to develop their own decision-making ability.98

AFDO considers it is important to limit the power of a representative to decide on behalf of the person only in a situation where the person’s will and preferences and what they would likely want cannot be determined.

The ALRC considered that it would be unreasonable to expect a representative to fulfil the duty to assist the person to develop their own decision-making ability in circumstances where a person does not have, and is unlikely ever to develop, the ability to make decisions.99

Safeguards

Compliance with Article 12 requires safeguards and recognition of the purpose of each safeguard. Some safeguards must protect the person requiring support from abuse, neglect or exploitation. Others are needed to ensure that a decision truly expresses and effects the wishes of the person with disability. The most important safeguard for a supported decision-making regime is respect for the rights, will, and preferences of the relevant person.

The ALRC recommended “Safeguards Guidelines”.100 Under those guidelines, safeguards should ensure that interventions for persons who require decision making support are:

• (a) the least restrictive of the person’s human rights
• subject to appeal, and
• subject to regular, independent and impartial monitoring and review.

In addition, support in decision-making must be free of conflict of interest and undue influence. Any appointment of a representative decision-maker must be:

• a last resort and not an alternative to appropriate support
• limited in scope, proportionate, and apply for the shortest time possible, and
• subject to review.

Review processes need to include accessible complaints mechanisms, as well as an appeal process to an independent and impartial tribunal or court.

It is difficult to protect people who may require decision-making support from abuse and neglect in all instances, but there are key safeguards against exploitation by supporters, including:

• (a) clearly setting the duties of supporters
• the ability of the person who requires decision-making support to revoke the appointment at any time
• provision for the appointment of more than one supporter, and
• guidance and training for people who require decision-making support, their supporters and state government departments and agencies interacting with them to ensure they fully understand their respective roles and the scope of their powers.101

Other safeguards include registration of arrangements, national police checks on appointments, and appointment of monitors to oversee the supporter.102

In relation to representatives, the ALRC identified the following additional safeguarding elements103:

• (a) mechanisms for review and appeal of the appointment of representatives, including on the application of any interested party
• the potential for representatives to be periodically required to make declarations regarding compliance with their duties
• reporting obligations on representatives with respect to decisions, for example by provision of a report, inventory or accounts
• the powers of any body conferred with jurisdiction to appoint a representative should include the power to respond to instances of abuse, neglect or exploitation
• the role of departments and agencies in monitoring, auditing and investigating the conduct of representatives, and
• the broader applicability of safeguards under the NDIS quality assurance and safeguards framework104.

5.2 La Trobe’s best practice framework

In 2023, La Trobe University’s Living with Disability Research Centre published a report for the DRC: Diversity, dignity, equity and best practice: a framework for supported decision-making105. This report includes nine best practice principles and eight best practice elements that should underpin a national supported decision-making framework for Australia. The first four of the nine best practice principles are based on the ALRC’s 2014 report (detailed in section 5.1). The other five emerged from the research for the study.106

Those additional four principles are:

• Principle 5: Principled approach to supported decision-making

  A principled approach to the concept and practice of supported decision-making should be adopted that keeps an individual’s stated or perceived ‘will and preferences’ at the centre of decision-making. This approach recognises the realities of the practice of providing supported decision-making, particularly for those with severe cognitive disabilities.

• Principle 6: Best interpretation of will and preferences

  In the very limited circumstances where a supporter has not been able to elicit a person’s will and preferences a decision should be based on their best interpretation of what the person’s will and preferences would be.

• Principle 7: Dignity and risk

  The dignity and importance of taking risks is acknowledged and supported. In very limited circumstances, where a person’s stated or inferred will and preferences involve risk of serious, imminent physical or financial harm with lasting consequences to themselves (including incurring civil or criminal liability), and that person is unable to understand that risk even with support, personal and social wellbeing substitute decision-making is applied as a last resort with the person’s personal and social wellbeing at the centre.

• Principle 8: Distributional equity

  All supported decision-making reform and initiatives should be premised on the ethical principle of a commitment to distributional equity of access to supported

decision-making. Those experiencing disadvantage in access to support for decision-making should be given priority in new programs.

• Principle 9: Co-leadership of people with cognitive disabilities

  People with cognitive disabilities and supporters of people with severe cognitive disabilities should lead consultation and design processes for supported decision-making reform and initiatives.

This framework includes eight essential elements as design imperatives for “operationalising universal principles and development of supported decision-making law, policy, programs and practice”.107 These elements are108:

• Element 1: Recognising diversity in supported decision-making
• Element 2: Interrelationship of supported decision-making with other systems
• Element 3: Use of best practice and ethical supported decision-making
• Element 4: Capacity building at individual, system and institutional levels
• Element 5: Safeguarding, quality assurance and oversight
• Element 6: Enabling forward planning
• Element 7: Adequate funding
• Element 8: Strategies to build social connections

To date, the Commonwealth has not taken any steps to implement the La Trobe guidelines.

5.3 DRC recommendation 6.6

The DRC recommended109 that:

• (a) the states and territories which have not already done so should review and reform their guardianship and administration legislation to include ten supported decision-making principles. That legislation must require all persons exercising powers, carrying out functions, or performing duties under the legislation to have regard to the principles, and

the Australian government and state and territory governments should also take steps to review and reform other laws concerning individual decision-making to give legislative effect to the supported decision-making principles.

The 10 principles are set out below.

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 as far as practicable in the circumstances 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, and
• 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 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.

Recommendation 4

AFDO urges the Committee to:

A. recommend that the NSW Parliament enshrines in NSW law the fundamental right of older people and people with disability in New South Wales:

i.  to make decisions that affect their lives and to have those decisions respected, and

ii. to have access to the necessary supports to assist them to exercise that right, through a legislated framework for supported decision making.

B. further recommend a supported decision-making model for older people and people with disability that:

i.  adopts the model, principles and guidelines, and incorporates the concepts of “Supporter” and “Representative”, and the safeguards recommended by the ALRC

ii. is consistent with and applies the principles and includes the elements of the La Trobe best practice framework, and

iii.    is consistent with and applies the principles recommended by the Disability Royal Commission in its recommendation 6.6, and

C. further recommend to the Parliament that, to the extent there is any inconsistency between the DRC principles, the La Trobe principles and best practice framework, and the ALRC model and principles, the DRC principles are to be given preference.

Recommendation 5

The Committee to recommend that the Parliament legislates to replace the various tests at common law for “mental incapacity” (as the basis on which a substituted decision-maker can make a decision for a person) with a single, uniform, codified test for when a Representative can decide on behalf of a person, which is only in a situation where the person’s will and preferences and what they would likely want cannot be determined.

Recommendation 6

The Committee to recommend that the Parliament amends:

A. the Guardianship Act

B. the Trustee Act, and

C. the CPA Act, and the UCPR,

to:

D. replace the principles in each Act with principles consistent with the ALRC model, the La Trobe principles, and the DRC principles

E. replace the concepts of “best interests” or “safeguarding” with the will and preferences of the person

F. include roles and responsibilities of Supporter and Representative to the roles of guardian, manager, and tutor (as the case may be)

G. replace the concepts of “legal incapacity” and “mental incapacity” as the benchmark for authorising a Representative deciding for a person with the situation where the person’s will and preferences and what they would likely want cannot be determined.

Recommendation 7

The Committee to recommend that the Parliament amends the POA Act to:

A. replace the concepts of “best interests” or “safeguarding” with the will and preferences of the person

B. remove the concepts of mental incapacity at the time the power is given or mental incapacity at the time the relevant act is done.

Recommendation 8

The Committee to recommend that the Parliament amends the VAD Act to expressly authorise supported decision-making by an “eligible person” that:

A. adopts the model, principles and guidelines, and incorporates the concepts of “Supporter” and “Representative”, and the safeguards recommended by the ALRC

B. is consistent with and applies the principles and includes the elements of the La Trobe best practice framework, and

C. is consistent with and applies the principles recommended by the Disability Royal Commission in its recommendation 6.6

Recommendation 9

The Committee to recommend that:

A. the Department of Communities and Justice revises and updates the Capacity Toolkit, and

B. the Law Society of New South Wales revises and updates its practical guide for solicitors

so that each document:

C. aligns with the model, principles and guidelines, and incorporates the concepts of “Supporter” and “Representative”, and the safeguards recommended by the ALRC

D. is consistent with and applies the principles and includes the elements of the La Trobe best practice framework, and

E. is consistent with and applies the principles recommended by the Disability Royal Commission in its recommendation 6.6.

Recommendation 10

The Committee to recommend that the Parliament amends the Act to give the Commissioner powers to:

A. maintain a register of appointed Supporters and Representatives, and set requirements for registration, including national police checks

B. monitor, or appoint independent monitors to oversee, the conduct of Supporters and Representatives

C. receive and publish reports provided under the supported decision-making framework

D. develop a quality and safeguarding framework

E. to respond to instances of abuse, neglect or exploitation

F. co-design with people with disability, older people, and their representative organisations, and make available,

i.  supports for supported decision-making

ii. resources to help Supporters and Representatives understand their roles and responsibilities

iii.    resources to help government departments and agencies their roles and responsibilities

iv. resources to help people with disability and older people understand the supported decision-making framework, and

v.  resources for Supporters and Representatives to help them assist people to develop their own decision-making capabilities.

6 No constitutional issues

There is one last issue that it is important we address. .

Under the current legislative schemes for guardianship and substituted decision-making in NSW, the ability or power of a substituted decision maker to make decision under, or in respect of matters under Commonwealth legislation (for example, making substituted decisions under the NDIS Act or the Aged Care Act) does not raise any issue of constitutional invalidity. However, there are real issues that arise in respect of

how the two systems interact with each other and possible conflicts of-duty when a state-appointed guardian performs functions under Commonwealth laws.

In the context of a new Commonwealth model of supported decision making existing in conjunction with existing state substituted decision-making arrangements, the ALRC recognised that a

major difficulty in applying the Commonwealth decision-making model is determining the appropriate interaction of supporters and representatives with other supporters and representatives, as well as state and territory appointed decision makers, such as guardians and administrators.110

The NSW government also observed in its submission that important issues in relation to this interaction included:

• whether a Commonwealth appointee’s authority would override the authority of a state-based appointee where the scope of their appointments may intersect
• the mechanism for resolution of disputes between Commonwealth appointees and state-based appointees
• double-duties on appointees under both schemes, and
• the recognition of Commonwealth appointees in State-based legislation and vice versa.111

Under current arrangements, in practice, the NDIS Act “looks across” to state arrangements rather than trying to replace them. This helps avoid a head-of-power or inconsistency problem, that would raise constitutional issues.

Similar to the NDIS Act, the Aged Care Act also builds in a supported decision-making model centred on the older person’s will and preferences112. A person with the older person’s consent can register as a supporter, or they can be recognised if already legally appointed under Commonwealth, state or territory law (including a guardian). 113Once registered, and “in line with the will and preferences of the older person”, a supporter can:

• help the older person make their own decisions
• request, access or receive information and documents
• communicate information or decisions the older person has made.

The main issue under current arrangements is not that state guardians “cannot” act under Commonwealth law, but that a single person may be subject to two different and potentially inconsistent duty frameworks. Guardianship law often frames duties in “best interests” terms, whilst the NDIS and aged care decision-making models focus on will, preferences and participant-directed decision-making.

Implementing a supported decision-making framework in accordance with our recommendations will not create any constitutional or practical issues with the existing frameworks in place in the NDIS and aged care systems. Instead, implementing our recommendations will remove all the concerns the NSW government expressed in its submission to the ALRC.

Endnotes

1. United Nations Convention on the Rights of Persons with Disabilities, 2515 UNTS 3 (entered into force 3 May 2008), retrieved from https://social.desa.un.org/issues/disability/crpd/convention-on-the-rights-of-persons-with-disabilities-crpd, accessed 7 January 2026.
2. CRPD Committee, General Comment No. 1 (2014): Article 12 – Equal recognition before the law, United Nations, (CRPD/C/GC/1), retrieved from https://docs.un.org/en/CRPD/C/GC/1, accessed 10 March 2026.
3. International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976), retrieved from https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights, accessed 3 March 2026.
4. Section 6, Guardianship Act.
5. Section 6A, Guardianship Act.
6. Section 9, Guardianship Act.
7. Section 3, Guardianship Act.
8. Section 4, Guardianship Act.
9. Section 21(2A), Guardianship Act.
10. Section 21(1), Guardianship Act.
11. Division 1, Part 3A, Guardianship Act.
12. Chapter 4, Trustee Act.
13. Section 39, Trustee Act.
14. Section 56, Trustee Act.
15. Section 57(1), and the definition in section 3, Trustee Act.
16. Lindsay, G, In the service of others: The Context, Nature and Purpose of Work of the NSW Trustee and the Public Guardian in the Protection of a Vulnerable Person, 28 September 2022, retrieved from https://supremecourt.nsw.gov.au/documents/Publications/Speeches/2022-Speeches/Lindsay_20220928.pdf, accessed 5 March 2026.
17. Section 9(1), POA Act.
18. Section 16(1)(c) and (d), POA Act.
19. Section 19(1)(a), POA Act.
20. Section 17(1), POA Act.

21. Section 18, POA Act.
22. Section 21(1), POA Act.
23. Section 29(1), POA Act.
24. Section 31(1), POA Act.
25. Section 4(1), POA Act.
26. Rule 7.14(1), UCPR.
27. Section 160, CPA.
28. NSW Insurance Ministerial Corp v Abualfoul (1999) 94 FCR 247 at [28].
29. Thatcher v Scott [1968] 87 WN (Pt 1) (NSW) 461 at 463.
30. Section 3, CPA.
31. Rule 15(1), UCPR.
32. Rule 15(5), UCPR.
33. Rule 7.15(2), UCPR.
34. Rule 7.15(3), UCPR.
35. Maestri, R, Tutors, Costs and Risks — Litigation and the Incapable, (1 June 2020), retrieved from Thttps://www.bartier.com.au/insights/articles/tutors-costs-and-risks-litigation-and-the-incapable, accessed 6 March 2026.
36. Section 4(1)(b), VAD Act.
37. Section 4(1)(c), VAD Act.
38. Section 113 (c) and (d), VAD Act.
39. Section 15(1)(e), VAD Act
40. Section 6(1), VAD Act.
41. Section 6(2), VAD Act.
42. Ageing and Disability Commission, Voluntary Assisted Dying, retrieved from https://ageingdisabilitycommission.nsw.gov.au/about-us/reporting/voluntary-assisted-dying.html, accessed 6 March 2026.
43. Note 42.
44. The Law Society of New South Wales, When a client’s mental capacity is in doubt: A practical guide for solicitors, 2016, p. 5, retrieved from https://www.lawsociety.com.au/sites/default/files/2018-03/Clients%20mental%20capacity.pdf, accessed 6 March 2026.

45. Re Estate of Margaret Bellew [1992] Supreme Court of NSW, Probate Division (Unreported) McLelland J, 13 August 1992.
46. Re K [1988] 1 Ch 310.
47. Banks v Goodfellow (1870) LR 5 QB 549 citing Stevens v Vancleve (1822) 23 F. Cas. 35.
48. Note 44.
49. New South Wales Department of Communities and Justice Capacity Toolkit: Information for government and community workers, professionals, families and carers in New South Wales, (Sydney, 2008) retrieved from https://dcj.nsw.gov.au/resources/capacity-toolkit.html, accessed 6 March 2026.
50. Note 44, p.6.
51. Note 50.
52. Note 1, Article 12(1).
53. Note 1, Article 12(2).
54. Note 1, Article 12(3).
55. Note 1, Article 12(4).
56. Note 2, paragraph 8 (p. 2).
57. Note 2, paragraph 8 (p. 2).
58. Note 2, paragraph 17 (p. 4).
59. Note 2, paragraph 9 (p. 3).
60. Note 2, paragraph 14 (p. 4).
61. Note 2, paragraph 13 (p. 3).
62. Note 58.
63. Note 1, Article 3(d).
64. Note 58.
65. Note 2, paragraph 18 (p. 5).
66. Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability: Final Report, Volume 6, Enabling autonomy and access (2023), p.7, retrieved from https://disability.royalcommission.gov.au/system/files/2023-09/Final%20Report%20-%20Volume%206%2C%20Enabling%20autonomy%20and%20access.pdf, accessed 18 February 2026.

67. Note 66, p. 3.
68. Note 2, paragraph 21 (p. 5).
69. Convention on the Rights of Persons with Disabilities: Declarations and Reservations (Australia), opened for signature 30 March 2007, 999 UNTS 3 (entered into force 3 May 2008).
70. Committee on the Rights of Persons with Disability, Concluding Observations on the Initial Report of Australia, adopted by the Committee at its Tenth Session (2–13 September 2013) (United Nations, 4 October 2013) p. 9, retrieved from https://digitallibrary.un.org/nanna/record/759602/files/CRPD_C_AUS_CO_1-EN.pdf, accessed 3 March 2026. Committee on the Rights of Persons with Disability, Concluding observations on the combined second and third periodic reports of Australia, adopted by the Committee at its Twenty-second session (26 August–20 September 2019) (United Nations, 15 October 2019), p. 6, retrieved from https://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=NjndMbpD3Yrm/S1y7pTdkbOXcEKPMaHMzT1d44Qe+PPshzD/54+WdeF46lI2pWUO48H8Av0Ytq5H4n5rftbAKA==, accessed 3 March 2026.
71. Note 66, recommendation 6.20, p. 25.
72. Department of Health, Disability and Ageing, Disability Royal Commission Progress Report 2025, Recommendation 6.20 – Interpretative declaration, 27 November 2025, retrieved from https://www.health.gov.au/resources/publications/disability-royal-commission-progress-report-2025/volume-6-enabling-autonomy-and-access/recommendation-620-interpretative-declaration?language=en, accessed 20 February 2026.
73. Note 72.
74. Note 66, recommendation 6.6, pp. 16-17.
75. On 3 April 2025, the Human Rights Council of the UN adopted a consensus resolution initiating an Intergovernmental Working Group to draft a new, legally binding international treaty on the rights of older persons. Resolution A/HRC/RES/58/13 - see Office of the High Commissioners on Human Rights, Intergovernmental Working Group on older persons, United Nations, retrieved from https://www.ohchr.org/en/hrc-subsidiaries/iwg-older-persons, accessed 3 March 2026.
76. Note 3, Article 16 (recognition as a person before the law) and Article 26 (equality before the law and non‑discrimination).
77. See https://indicators.ohchr.org, accessed 3 March 2026.
78. Australian Institute of Health and Welfare, Australia’s Welfare 2011, (2011) p. 11, retrieved from https://www.aihw.gov.au/reports/australias-welfare/australias-welfare-2011/summary, accessed 19 February 2026.

79. Australian Bureau of Statistics, Disability, Ageing and Carers, Australia: Summary of Findings, 2022, released 4 July 2024, retrieved from https://www.abs.gov.au/statistics/health/disability/disability-ageing-and-carers-australia-summary-findings/2022, accessed 12 January 2026.
80. Australian Institute of Health and Welfare, Australia’s welfare 2025: in brief, (2025) p. 10 retrieved from https://www.aihw.gov.au/getmedia/4b343cfa-5612-4fbc-8803-97e98dc3caba/aihw-aus-253.pdf?v=20250911134326&inline=true, accessed 17 February 2026.
81. Note 1, Article 4(5).
82. That is, they are not within any of the heads of power exclusively reserved to the Commonwealth under section 51 of the Australian Constitution. This includes laws of capacity, legal personality, agency, powers of attorney, guardianship, consent and conflicts of interest.
83. Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws (ALRC Report 124), 24 November 2014, Retrieved from https://www.alrc.gov.au/publication/equality-capacity-and-disability-in-commonwealth-laws-alrc-report-124/,accessed 27 February 2026.
84. Retrieved from https://www.alrc.gov.au/publication/equality-capacity-and-disability-in-commonwealth-laws-alrc-report-124/3-national-decision-making-principles-2/national-decision-making-principles-2/ accessed 27 February 2026.
85. Note 83, p.24.
86. Note 83, p.25.
87. Note 83, recommendation 3-3, p. 77.
88. Note 83, recommendation 4-3, pp. 101-102.
89. Note 83, p 103.
90. Note 83, recommendation 4-4, p. 103.
91. Note 83, p 107.
92. The ALRC recommended that ‘existing appointee’ should be defined to include existing Commonwealth supporters and representatives and a person or organisation who, under Commonwealth, state or territory law, has guardianship of the person, or is a person formally appointed to make decisions for the person – note 83, page 105.
93. Note 83, recommendation 4-5, pp. 104-105.
94. Note 83, p 106.
95. Note 83, recommendation 4-7, p. 115.
96. Note 92.

97. Note 94.
98. Note 83, recommendation 4-8, pp. 115-116.
99. Note 83, p 116.
100. Note 83, recommendation 3-4, pp. 86-87.
101. Note 83, p 110.
102. Note 101.
103. Note 83, pp. 118-119.
104. Department of Health, Disability and Ageing, NDIS Quality and Safeguarding Framework (January 2017), retrieved from https://www.health.gov.au/resources/publications/ndis-quality-and-safeguarding-framework?language=en, accessed 27 February 2026.
105. C. Bigby, J. Douglas, & S. Vassallo, The La Trobe Support for Decision Making Practice Framework: An online learning resource, 2019, retrieved from https://supporteddecisionmaking.com.au/resource/the-la-trobe-support-for-decision-making-practice-framework-learning-resource/ accessed 27 February 2026.
106. Note 105, p. 3.
107. Note 105, p. 5.
108. Note 107
109. Note 74.
110. Note 83, p.119.
111. Note 110.
112. Chapter 1, Part 4, Aged Care Act 2024 (Cth).
113. Section 37, Aged Care Act 2024 (Cth).