NDIA Accountability Project

Submission to the NSW Legislative Assembly Committee on Ageing and Disability: Inquiry into supported decision-making in NSW

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Submission No 38

SUPPORTED DECISION-MAKING IN NSW

Organisation: NSW Ageing and Disability Commission

Date Received: 26 March 2026

NSW AGEING AND DISABILITY COMMISSION

SUBMISSION TO THE NSW LEGISLATIVE ASSEMBLY COMMITTEE ON AGEING AND DISABILITY

Inquiry into supported decision-making in NSW

March 2026

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Table of contents

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Overview

The NSW Ageing and Disability Commission (ADC) was established in 2019, with the objectives of protecting adults with disability and older people from abuse, neglect and exploitation, and protecting and promoting their rights. The Ageing and Disability Commissioner Act 2019 (ADC Act) is rights-based legislation that is focused on the will and preferences of the adult with disability or older person and includes requirements for the adult with disability or older person to be provided with support to make key decisions in relation to investigations.

Supported decision-making is fundamental to upholding the rights and autonomy of people with disability and older people in NSW. It maximises direct participation in decisions that affect their lives and enables appropriate recognition of their will and preferences. However, while the approach appears universally supported, limited progress has been made in the implementation of supported decision-making in NSW, and no progress made on necessary legislative reform.

The ADC supports the Parliamentary Committee’s focus on implementation. There has been extensive examination of supported decision-making in NSW and nationally over more than a decade, including through multiple law reform processes and inquiries. The ADC has contributed to this work and sees this inquiry as an important opportunity to move from principles and pilots to reform and consistent practice.

In line with the ADC Act, the ADC implements supported decision-making through a rights-based approach to respond to abuse, neglect, and exploitation, including coercive control and other forms of domestic violence. Supported decision-making is embedded across the ADC’s preventive, investigative and educative functions. We also support individuals, agencies and families with practical problem-solving approaches to avoid unnecessary guardianship and financial management applications to the NSW Civil and Administrative Tribunal (NCAT).

There is an urgent need for cultural change to address ableism and ageism and uplift practice so that supported decision-making approaches are consistently applied across all settings. Abuse, neglect and exploitation are inadvertently facilitated by systems and service environments that fail to make time, create space, or provide the support necessary to hear directly from people with disability and older people about their own lives. The ADC welcomes the work to implement safety by design principles in the prevention of domestic violence in NSW. The implementation of supported decision-making as a business-as-usual approach across all service settings is a critical step in the implementation of safety by design to address the over-representation of adults with disability and older people as victim-survivors of domestic violence.

The growing number of Australians living with dementia creates further urgency in bringing about a cultural change in the way services are delivered so that supported decision-making is an embedded approach. It is critical that we maximise the autonomy of adults with disability and ensure systems in NSW support their voices to be heard. There is also a need to enhance systems to meet the reality that a growing number of people will not be able to engage in supported decision-making, and to move to a will and preference model of substitute decision-making.

The critical task for NSW is now to move decisively to implementing supported decision-making and embedding it as business-as-usual practice, supported by legislative reform.

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Recommendations

The ADC welcomes consideration of changes that can be made to strengthen supported decision-making in NSW. The following recommendations are practical and implementation focused, with the intent of moving supported decision-making from principle to everyday practice, reducing reliance on and misuse of substitute and proxy decision-making.

  1. Progress reform of guardianship and administration legislation in NSW.

    Meaningful and lasting action to embed supported decision-making as the default approach in NSW and to provide a spectrum of decision-making arrangements requires legislative change, including reform of the Guardianship Act 1987. Action should be taken as a matter of priority to progress existing recommendations from previous inquiries and reviews on this topic.

  2. Action should be taken to identify, coordinate and implement policy and practice changes across NSW Government agencies to advance and embed supported decision-making pending legislative reform.

    There are actions that NSW Government agencies and other sectors can be taking in the short term to help advance supported decision-making in NSW in ways that can make a difference to people with disability and older people. We have highlighted a range of potential actions in our submission; however, this inquiry also provides an opportunity to identify and canvass other or additional options. Further work will be needed to coordinate and oversight implementation of identified actions.

  3. Establish clear leadership and accountability in relation to the implementation of quality supported decision-making

    NSW should establish a leadership function through an identified agency to drive implementation and consistent application of supported decision-making across systems. This role should be systemic, preventive and educative, including issuing practical, tailored guidance on supported decision-making practice, and coordinating capability uplift across government, services and the broader community.

    The functions should also involve monitoring the implementation of supported decision-making in NSW and publicly reporting on progress and making practical recommendations for improvements in priority settings – such as health, aged care, disability, mental health, housing, financial and legal services.

    The ADC – with our rights-based legislative framework and track record of implementing supported decision-making – is ideally placed to perform these functions.

    Appropriate resources need to be provided to fulfil this role.

  4. Priority should be given to the implementation of supported decision-making as part of a safety-by-design approach to prevent domestic violence

    Current domestic violence prevention frameworks should ensure current safety-by-design approaches include the expectation that systems provide support and accommodations to uphold autonomy and assist in communication. The supported decision-making principles, as outlined by the Australian Law Reform Commission,

should be embedded in service systems across NSW to address the disproportionately high levels of domestic violence against people with disability.

  1. Investment in advocacy for people with disability and older people with a focus on culturally appropriate support

    Independent advocacy services for people with disability and older people are essential in creating space to understand and uphold the person’s will and preferences and can play a vital role in the provision of decision-making support. They require adequate funding to provide this assistance, with a focus on local and culturally appropriate and tailored support.

  2. Investment in support navigation services

    Care navigation and dementia navigation services should be adequately funded to provide in-person and local support to individuals to prevent unnecessary use of substitute, nominee or representative decision-making where complexity of service systems present a real barrier for supported decision-making. Priority should be given to work with First Nations, Culturally and Linguistically Diverse (CALD) and rural, regional and remote communities.

  3. Education and capability-building for supporters and substitute decision-makers

    Where nominee, representative or substitute decision-making arrangements are in place, clear information, advice and education should be provided to parties both at the time of entering into the arrangements and at the time of activating the instruments. The aim would be to ensure a sound understanding of the role and limits of the decision-making arrangements, with a strong focus on upholding the adult’s wishes or the presumed wishes of the adult based on their life history.

  4. Increase uptake of future planning instruments and processes

    Investment is required to increase awareness about future planning instruments and advance care directives. Further work is required to increase equitable access to these processes and provide access to all individuals to ensure their views and wishes are known. NSW Government systems should be examined for opportunities to build in and increase the accessibility of these instruments for CALD and First Nations communities.

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1. Introduction

This submission has been informed by the ADC’s experience in exercising our functions, including in handling reports about abuse, neglect and exploitation of adults with disability and older people, and coordinating the Official Community Visitor (OCV) scheme.

Given our role, we have sought to illustrate the current experience of adults with disability and older people in NSW and the practical implementation of supported decision-making by the ADC in the context of abuse.

Against the background of our work, our submission includes a focus on the benefits of supported decision-making to disrupt abuse; the importance of embedding supported decision-making as an essential element of safety-by-design to address the disproportionate rates of domestic violence against people with disability; and the opportunities available through legislative and non-legislative mechanisms to advance supported decision-making in NSW.

Relevant prior work

The ADC supports the Parliamentary Committee’s focus on implementation. It is important to recognise that there has been substantial work undertaken nationally and in NSW to examine decision-making arrangements and make recommendations about changes that are required to shift towards supported (or assisted) decision-making. Among other things, this includes reports and recommendations from:

  • The Australian Law Reform Commission (ALRC) inquiry into Equality, Capacity and Disability in Commonwealth Laws, which included recommendations in relation to National Decision-Making Principles.1
  • The NSW Law Reform Commission (NSWLRC) review of the Guardianship Act 1987, which included recommendations to establish an assisted decision-making framework and Act.2
  • The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (DRC), which included recommendations for all states and territories to reform guardianship and administration legislation and establish a supported decision-making framework.3

In 2023-24, the ADC participated in a working group that was convened by the Department of Communities and Justice (DCJ) to examine the recommendations of the NSWLRC and DRC in relation to guardianship, administration and supported decision-making, and to provide advice to the NSW Government about next steps. In our view, the working group was a constructive process that enabled the identification of key areas of broad agreement, and the resulting report to government provided useful guidance on potential pathways forward. While we understand that the report was provided to the NSW Attorney-General, we are not aware of any government response to the report to date.

1 ALRC (November 2014) Equality, Capacity and Disability in Commonwealth Laws, Report 124: ALRC Report 124 publication page. 2 NSWLRC (August 2018) Review of the Guardianship Act 1987 (NSW), Report 145: NSWLRC Report 145 landing page. 3 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (September 2023), Final Report, Volume 6: Enabling autonomy and access: https://disability.royalcommission.gov.au/publications/final-report-volume-6-enabling-autonomy-and-access.

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Noting that the working group considered the combined recommendations of the NSWLRC and DRC in key areas directly relevant to supported decision-making in NSW, in our view it is imperative that the inquiry gives appropriate attention to this work and seeks to advance, not replicate, prior activity.

2. Supported decision-making and the role and functions of the ADC

Promoting and upholding the right of adults with disability and older people to make and exercise their own decisions, including through supported decision-making, is central to the ADC’s legislation and operation.

The ADC Act is underpinned by a focus on the rights, will and preferences of the adult with disability and older person, not their ‘best interests’. Among other things, the ADC’s legislation:

  • requires the ADC to have the consent of the adult before commencing an investigation, with limited exceptions
  • requires appropriate support to be provided to the adult before the ADC can form a view that the adult is incapable of giving their consent to an investigation
  • in relation to the execution of a search warrant, requires the consent of the adult to be examined by a health practitioner and the provision of appropriate support to the adult to make that decision
  • requires any party exercising a function under the Act with respect to a particular adult with disability or older person to have regard to the wishes of the adult.

The access of adults with disability and older people to decision-making supports, and the implementation of those supports in practice, are active, ongoing considerations for the ADC in executing our functions, including in handling reports of abuse, neglect and exploitation, and managing the OCV scheme.

Use of supported decision-making in preventing and responding to abuse, neglect and exploitation

The ADC handles reports about adults with disability and older people in NSW who are subject to, or at risk of, abuse, neglect and exploitation in their family, home and community. The ADC receives a high and increasing number of reports each year, many of which feature violations of a persons’ autonomy (autonomy violations), including adults who are prevented from making and upholding decisions about their own lives.

Between 1 January 20204 and 31 December 2025, the ADC received 24,753 statutory reports about abuse, neglect and exploitation of adults with disability and older people in NSW, involving 41,716 allegations. The following table provides an overview of the more common allegations reported to the ADC during this period involving autonomy violations.

4 While the ADC commenced on 1 July 2019, not all relevant data fields were available prior to key data enhancement activities at the end of 2019.

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Table 1: Main allegations involving autonomy violations in reports to the ADC about adults with disability and older people, 1 January 2020 – 31 December 2025

Allegation Number of times allegation reported
Financial exploitation 4,763
Preventing or restricting access to family or others 2,405
Preventing or restricting access to supports and services 2,125
Misuse of Power of Attorney/ Enduring POA 1,750
Preventing access to or withholding the Person’s money 906
Preventing or restricting access to community 626
Misuse of guardianship 460
Preventing or restricting access to aids and equipment 203
Misuse of financial management 174

Supported decision-making is not only a rights-based approach; it can be a protective mechanism that helps prevent abuse, neglect and exploitation. In handling reports about abuse, neglect and exploitation of adults with disability and older people, the ADC has found that autonomy violations and proxy decision-making are common pathways through which coercive control and other forms of abuse are enabled and sustained.

Often, we find that this abuse is enabled to occur where service systems do not have an adequate focus on safety-by-design to prevent undue influence, coercion, substitute decision-making that is not legally authorised, or substitute decision-making that is authorised but being used as a tool for abuse.

Supported decision-making in our handling of reports

The ADC has a key role in promoting the rights of adults with disability and older people and providing a victim-survivor led response to abuse. The ADC’s approach is grounded in the principle that adults have the right to make their own decisions, including those involving risk, and to access support to do so when needed.

The focus on the views, wishes and decisions of the adult with disability or older person themselves is emphasised and implemented throughout our handling of enquiries and reports about abuse, neglect and exploitation, from the first point of contact with the Ageing and Disability Abuse Helpline, through to the work of the Community Supports and Investigations (CSI) Unit.

The ADC regularly provides advice and guidance on the importance of engaging directly with the adult, using communication supports and adjustments, and addressing ‘scope creep’, where substitute decision-makers or supporters seek to make decisions beyond their legal authority.

Our Helpline and CSI Unit staff provide information, make referrals, connect adults with advocacy services, work with allied health professionals to maximise engagement, and have supportive but clear conversations with parties about their role in supporting the adult to make decisions and, importantly, not overriding the adult, speaking for them, or making decisions in their ‘best interests’.

Across this work, the ADC supports agencies to accept a degree of risk where adults make decisions others may disagree with, and to reset service boundaries so decisions about service delivery are directed by the adult. This assistance is frequently required, as

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informal substitute decision-making commonly arises where adequate decision-making support has not been provided.

In line with the ADC Act, we seek the consent of the adult before commencing an investigation, with limited exceptions – including where reasonable efforts to access the adult have failed, or where it is not necessary to seek consent due to the seriousness of the allegation(s) or risk to the adult’s personal safety.

The ADC’s practice is centred on the presumption of capacity and the decision-specific nature of capacity, meaning that the appointment of a guardian for certain functions will not prevent the ADC from meeting directly with the adult and seeking their consent to investigate, with appropriate decision-making support.

Importantly, where an adult declines to provide consent to an ADC investigation, we will continue to work with them to address concerns about abuse, neglect or exploitation, and support them to assert and uphold their rights. Adults may change their mind at any time and withdraw or provide consent as circumstances evolve.

The ADC’s rights-based approach to handling reports means working directly with the adult wherever possible, using practical adjustments such as interpreters, paced conversations, visual and Easy Read materials, and other tailored communication approaches. The ADC actively addresses barriers to participation and coercive control by carefully considering relationship dynamics, engaging trusted supports or advocates, identifying conflicts of interest, and clarifying the roles and limits of supporters, nominees and representatives. These actions help maintain the adult as the decision-maker, prevent informal or premature substitute decision-making, and ensure any intervention remains proportionate and focused on the adult’s will and preferences.

Intersection with NCAT

The ADC supports least restrictive approaches and often works to avoid unnecessary guardianship and financial management applications by improving conditions for supported decision-making. Where substitute decision-making is necessary, the focus is on it being proportionate, time-limited and oriented to restoring autonomy.

The Helpline provides advice to families and services about the rights of adults to make decisions others may disagree with. The Helpline promotes least intrusive, rights-based approaches and steps that involve engaging directly with the adult and taking early action to address abuse without defaulting to guardianship.

The ADC’s CSI Unit provides more intensive advice, referrals and capability-building over time to reduce the need to go to NCAT. ADC staff regularly connect adults to advocacy, legal or navigation services to provide practical decision-making support to uphold their wishes. We also work closely with service providers to shoulder risk and jointly explore options to address the concerns about the safety and wellbeing of the adult, often addressing these issues without the need for NCAT.

In NCAT matters, the ADC regularly makes submissions to prevent premature or unnecessary guardianship or financial management orders, and to ensure a focus on the least intrusive option. This includes the ADC providing information to NCAT, in response to applications by other parties, to support our view that an order is not required; and to make submissions to limit the scope and length of an order. For example, in circumstances where the adult has been subject to financial abuse by family members and denied the opportunity to develop financial management skills, the ADC may submit that there is a

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need for a short order to protect any significant assets or savings while the adult is supported to build their financial literacy.

The ADC does make applications to NCAT where necessary. This tends to be in circumstances where:

a) existing substitute decision-making arrangements are being used to perpetrate abuse. For example, a common scenario encountered by the ADC involves an older person who is subject to significant financial abuse by the family member they appointed as their Enduring Power of Attorney (EPOA) and is no longer able to give legal instruction to revoke the EPOA. Often, the older person has dementia, is residing in residential aged care, and can no longer intentionally communicate. In this situation, the ADC may proceed to make an application to NCAT for the EPOA to be reviewed and a suitable financial manager appointed.

b) the adult can express their views and wishes but cannot complete the other steps required to make an informed decision, such as weighing information or entering into service contracts (see case study below), and/or cannot give effect to their decision. High levels of undue influence or coercive control can lead to the need for an application to NCAT to have a substitute decision-maker appointed to implement the wishes of the person (see further the case study below on will and preference substitute decision-making).

Case study: Joe

Joe is a young man with an intellectual disability. He lives with his mother and has an NDIS package to provide him with opportunities for community engagement and skill building. However, at the time of the report to the ADC, Joe was not receiving any services through his package.

Joe’s mother was his NDIS plan nominee. When we met with her and Joe, she told us that it was better for Joe to stay at home with her. Joe’s mother advised the ADC that there was ‘not much point’ in Joe having the opportunity to make friends or do the things he enjoys, and that ‘he can’t learn’ because of his disability so did not need assistance to meet his goals of skills development and opportunities to build independence.

We spoke with Joe alone, using pictorial and paced communication to maximise his ability to provide his views and wishes. While Joe did not use verbal communication, when asked about going out he nodded enthusiastically and had a broad smile.

Despite substantial engagement with Joe and his mother over an extended period, including referrals for support and carer support, and bringing on a support coordinator, we were unable to assist Joe’s mother to fulfil her role as Joe’s plan nominee. She did not see the value in Joe making friends, developing his emerging communication, or connecting with his community. She also expressed a reluctance for Joe’s finances to be used to pay for any activities in the community or transport.

Although Joe was able to indicate enthusiasm for going out and meeting people, he was unable to sign service arrangements or understand the financial implications of his decisions, even with support. He was also unable to access allied health services to build his communication skills, and hopefully make decisions with support, while his mother was the NDIS plan nominee and blocking access to this assistance.

In this case, the ADC sought a short-term guardianship order through NCAT to appoint Joe’s brother as his private guardian, limited to making decisions about Joe’s access to services.

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Seeking to preserve family relationships, Joe’s brother told the ADC that he did not want to make the application to NCAT or apply to be the NDIS nominee himself. Joe’s brother was supported by the ADC and Joe’s NDIS support coordinator to engage in will and preferences substitute decision-making. Decisions were made in line with Joe’s wishes, with social and communication supports arranged. While Joe’s brother fulfilled the role of substitute decision-maker in relation to services, with support there were many decisions Joe was able to make, including expressing his preferences for support workers and choosing his activities using pictures.

ADC response

When the ADC engaged directly with Joe privately and using supported communication, he consistently expressed enthusiasm for leaving the house, meeting people, and participating in activities in the community. His preferences were clear and observable.

The ADC’s work focused on:

  • engaging directly with Joe rather than relying on his nominee
  • using adapted and non-verbal communication to maximise Joe’s participation
  • attempting to support the nominee to fulfil her role in a way that reflected Joe’s wishes
  • facilitating connections to carer support services and NDIS support coordination.

Official Community Visitors and support for decision-making

OCVs are appointed by the Minister for Disability Inclusion and Minister for Families and Communities to visit adults living in disability supported accommodation and assisted boarding houses, and children and young people living in residential out-of-home care in NSW. Their primary role is to meet with residents and to raise issues affecting them for early and local resolution.

OCVs encourage the promotion of the rights of residents, including the right to be involved in making decisions about their own lives to the maximum extent; and facilitate access to independent advocacy services for residents in appropriate cases.

During their visits, OCVs frequently consider and seek information about the extent to which residents are involved in decision-making, their communication and decision-making support needs, and the practical support they are provided to enable them to meaningfully participate.

The experience of OCVs has highlighted the significant work that is needed to advance and embed supported decision-making as core practice across services, and to improve the knowledge and capability of support staff. For example, OCVs frequently identify situations in which:

  • decisions are being made in relation to adults with disability by family members or other parties without lawful authority, and against the adult’s wishes
  • the right of residents to make and uphold their own decisions is denied, including removing adults with disability from the electoral roll, and
  • the communication and decision-making support needs of residents are not being met, including where they do not have access to the communication device they need.

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In recent years, OCVs have selected a number of longstanding systemic issues affecting people living in residential care in NSW to examine and report on. The aim has been to provide a better understanding of what they are seeing in relation to the issue, the impact on residents, and to highlight positive practice and areas for improvement. In 2024-25, OCVs selected ‘Involvement in decision-making’ as one of the systemic issues they would focus on in their visits – including consideration of the opportunities for residents to be involved in planning and decisions about their lives; training for staff on decision supports; and information provided to residents to help inform their decisions.

Case study: An OCV’s work with Tom

An OCV visited Tom, who lives in supported accommodation and receives Supported Independent Living (SIL) support. The OCV was told that Tom had had very little contact with his mother over the past few years. There were no guardianship orders in place for Tom, but his mother was still listed as his NDIS plan nominee.

Tom’s NDIS support coordinator recently started working with his accommodation provider and had sent out a notification advising all participants and relevant parties. Tom’s mother formed the view that this was a conflict of interest and arranged a new support coordinator for him. While the OCV understood that the decision was made due to possible conflicts of interest, they were concerned that Tom had expressed his wish to retain his support coordinator and this had not been upheld. There did not appear to be any consideration given to how any potential conflicts could be managed to respect Tom’s wishes.

The OCV raised their concerns in their visit report and sought clarification from Tom’s SIL provider as to how the provider was supporting Tom to ensure his voice was being heard and his wishes respected. The OCV identified that there would be benefit in an independent advocate to work with Tom to obtain and support his wishes as to whether his mother was still best placed to be his NDIS plan nominee given their estrangement, and his wishes in relation to the appointment of a new support coordinator.

Possible changes to the functions of the ADC to enhance supported decision-making

Supported decision-making aligns with the existing aims and objectives of the ADC and our legislation. As identified in this submission, we already undertake substantial and ongoing work in educating and building the capability of service providers, families, supporters and the broader community in relation to support for decision-making, including through our handling of enquiries and reports; community engagement and education activities; and our work with OCVs.

However, most of our functions are focused on matters relating to abuse, neglect and exploitation. For any proposals for the ADC to undertake an increased or more targeted role in relation to supported decision-making in NSW – for example, playing an identified leadership role; coordinating and delivering education, capability uplift, and practical guidance; or monitoring and reporting on practice – consideration should be given to specific functions focused on supported decision-making.

The challenges of the ADC in relation to resourcing in the context of growing demand are well known. Any expansion or increase in the ADC’s functions would require additional and sustained resourcing.

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3. Barriers and systems issues

In the ADC’s experience, failures to implement supported decision-making are often driven by systemic, practice, and attitudinal barriers, rather than a person’s decision-making ability. These barriers are apparent in many reports to the ADC, and can exclude the adult from decision-making, enable coercive control, and normalise informal or unauthorised substitute decision-making, including where it is unnecessary and not in the adult’s interests.

Gatekeeping and excluding the adult from decision-making

The ADC regularly identifies adults being excluded from decision-making even where no formal guardianship or substitute decision-making arrangement exists. This can include services engaging directly with family members/ partners or nominees and automatically accepting that party’s representation rather than directly talking (and meeting) with the adult. This may be attributed to convenience and/or efficiency, and the lack of resources and time to spend with the adult to support their decision-making. However, these practices are often shaped by ageist and ableist assumptions and biases (both unconscious and conscious). More significantly, they can unintentionally enable coercive control and other abuse and infringe the adult’s will and preferences.

Case study: Amy

Amy is a woman aged in her early 50s who lives in regional NSW. She requires assistance to move or reposition herself and for personal care, and relies on a wheelchair to mobilise. Amy can communicate face-to-face but finds communicating over the phone challenging due to her brain injury. She can make decisions with time and through face-to-face communication.

Amy resides with her husband, who has a long history of perpetrating physical and psychological abuse against her. When the ADC travelled to regional NSW to meet with Amy, it became apparent that she had been excluded from making any decisions about her life.

Amy’s husband was routinely making decisions for Amy and controlling the supports in her life. This included refusing a wheelchair or hoist for Amy, which effectively imprisoned her in bed. He also did not allow her to have a mobile phone, so she had no means to call for assistance or connect socially. He declined any NDIS services on her behalf, despite having no legal authority to do so. He also controlled all the smaller decisions, including choosing what she would eat and when she could access food.

Without visiting Amy in person and applying our expertise, this may have appeared as a functioning supported decision-making arrangement. Amy’s husband was always careful to put forward his decisions in her voice, including ‘Amy doesn’t want a wheelchair, she finds it too uncomfortable’, ‘Amy prefers her supports from family’, and ‘Amy gets overwhelmed if she goes out, she would rather be at home’.

ADC response

The ADC built a comprehensive multi-agency response to Amy’s situation. We:

  • met with her in person multiple times
  • connected her with advocacy support
  • reported criminal allegations to NSW Police
  • arranged for NSW Health to re-engage and provide an in-person service
  • ensured the NDIA only took direction from Amy – in line with her wishes, her file was marked to ensure her husband could not make decisions on her behalf

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  • with consent, and after a long period of time, connected her with domestic violence counselling.

In Amy’s case, supported decision-making was only possible once services invested the time and resources required to engage with her directly. When engaged face-to-face, with paced communication and privacy, Amy was able to understand information, weigh options, and clearly express her wishes about mobility, service access, health care and social connection.

Risk aversion and system response

The ADC commonly works with services and professionals to promote proportionate responses to risk, recognising that applications for guardianship and financial management should respond to actual harm, not be the default response to complex situations, service breakdown, or perceived risk.

In the ADC’s experience, risk-averse practices and reliance on crisis-driven pathways often lead to either informal substitute decision-making or premature escalation to NCAT for guardianship or financial management appointments without adequate exploration of supported decision-making. These responses are frequently compounded by fragmented or siloed service provision.

When services do not work together, practical barriers can increase, particularly for people with communication, language, cultural, or complex support needs. This can result in inaction, proxy or informal decision-making, or unnecessary escalation to NCAT, rather than timely, supported engagement with the adult.

We note that escalation to NCAT can often be avoided when services take time to stabilise a situation, work collaboratively across systems, address practical barriers, and actively support participation, such as through face-to-face engagement, responsive communication, culturally safe and trauma-informed practice, and allowing time for decision-making. Where service systems are complex and poorly coordinated, limited navigation and case coordination can undermine supported decision-making through structural barriers rather than genuine incapacity.

Role confusion and scope creep

Nominee, representative and informal supporter roles frequently operate as de facto substitute decision-making, without clear safeguards or accountability. Service systems often fail to distinguish between supporting communication and making decisions, allowing roles to expand beyond lawful authority. This scope creep can enable long-term restriction of autonomy and, as in the case study below, create pathways for coercive control and other abuse, neglect, and exploitation.

Where nominee or substitute decision-making arrangements are used to persistently override a person’s wishes and facilitate abuse, neglect, or exploitation, there are often limited, slow, or unclear pathways for review and intervention. This allows harmful arrangements to persist unchecked, particularly where abuse is framed as caregiving or protection.

Case study: Simon

The ADC received an anonymous report that a man with disability residing at an address was subject to physical abuse, with slapping overheard by neighbours. Only the address and the man’s first name were provided. The ADC conducted inquiries and identified the

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person as Simon, a man in his mid-40s with a progressive neurological disorder. Simon previously had a significant NDIS package, but this had been reduced over time due to underspending. We received advice from one of Simon’s NDIS providers that he did not use verbal communication and that his NDIS nominee, Michael, made decisions for him. This was based on the fact that Simon never spoke in appointments and Michael spoke for him.

The ADC made inquiries and established that Simon’s carer was his long-term friend, Michael. We found that Simon used verbal communication but his access to speech and language therapy, occupational therapy, and a day program had been cancelled by Michael. Michael had also removed Simon’s access to assistive communication technology and the internet at home. Michael was also appointed as Simon’s Enduring Guardian.

Simon was subject to humiliation and control by Michael, including being forced to complete laps of the backyard with his walker, regardless of his desire or ability to do so.

Michael had moved Simon to a regional location away from his family and friends. He attended every appointment with Simon, including sitting in on his therapy sessions. When the ADC asked about this, Michael said it was because Simon may make up lies or allegations against him. Simon’s GP advised that he never saw Simon alone and Michael always ‘did the talking’ during appointments.

The ADC coordinated with support services and as soon as Simon was supported to be alone with trusted support staff, he disclosed that he did not want to reside with Michael and did not want to return to his care. He had been told by Michael that his only choice was to live with Michael or go into a nursing home. The ADC was able to work with Simon, allied health and disability specialists to hear his voice and empower him to direct his own supports and services. Simon was supported to move into his own accommodation and his health significantly improved.

Communication and accessibility gaps

Inadequate access to interpreters, accessible information and communication methods, and time to engage with the adult, can prevent adults from meaningfully participating in decisions. Where communication needs are not met, it is easy to default to proxy decision-making, reinforcing dependence and exclusion. These gaps disproportionately affect adults with disability, older people, people from First Nations communities, and people from CALD communities.

Although supported decision-making is widely endorsed, it is not consistently embedded as a core workforce skill. As a result, frontline workers can lack confidence to support autonomy, accept reasonable risk, or challenge informal substitute decision-making.

Case study: Kelvin

The ADC received a report about Kelvin, a First Nations man living with his mother, Maureen, and siblings in regional NSW. Kelvin had multiple disabilities and complex health needs. He had been living in emergency accommodation for two years with little to no access to the community. The report raised concerns that Kelvin’s mother would often cancel his services and that he had no access to his own money or medical or dental care.

At the time the ADC became involved, an application to NCAT had been lodged by another party. The ADC requested an adjournment of the proceedings to provide time to investigate the concerns and work collaboratively with Kelvin and his family.

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ADC response

The ADC adopted a trauma-informed approach focused on maintaining current informal family-based supported decision-making. We valued direct engagement with Kelvin and his family, maintaining cultural safety, and addressing structural barriers that were affecting Maureen’s ability to provide support for Kelvin to make his own decisions and develop skills to independently manage his funds. Our actions included:

  • requesting an adjournment of NCAT proceedings to provide time to build capabilities and the conditions for supported decision-making to occur
  • meeting with Kelvin and his family in person on multiple occasions
  • providing clear and encouraging information and education to Maureen and linked services regarding expectations that Kelvin’s wishes would be explored and upheld, that his funds would be diverted into an account of his own, and that, in accordance with his wishes, he would be supported to build skills in managing his own funds to promote his independence
  • using a trauma-informed and culturally responsive approach to engagement, recognising the family’s experience of domestic violence and displacement
  • working collaboratively with Kelvin and his family and local services to stabilise housing, service access, and health care
  • addressing practical barriers to participation, including the absence of identity documents required for banking and service access
  • coordinating with legal and specialist domestic violence services and government agencies to resolve systemic obstacles.

As a result of these actions, and the environment built around Kelvin to listen to his views, support his safety and wellbeing, and gain control over his funds, the matter did not proceed to an NCAT hearing as substitute decision-making orders were not required.

Conscious and unconscious bias

Ageist and ableist assumptions influence whether adults are listened to. In many matters the ADC is involved in, this appears as an over-estimation of risk and failure to recognise the adult’s autonomy.

The ADC commonly sees adults spoken for, their preferences not independently verified, and their expressed wishes discounted. We also see decision-making capability being judged generally rather than on a decision-specific basis.

Ageism and ableism can enable coercive control and other abuse, compounding the harm by legitimising exclusion and undermining the person’s credibility.

When these biases intentionally or unintentionally shape practice, services can default to a family member, nominee, representative or other ‘decision-maker’ as the primary source of direction and authority. In the ADC’s experience this can enable coercive control and other abuse to take hold or remain hidden, particularly where monitoring, restricted contact, controlled communication and economic abuse are framed as ‘care’. On the surface, these restrictions may be presented as protecting the person, for example from scams or managing safety concerns such as mobility issues or wandering, but without active questioning and direct engagement with the adult, coercive control can be misinterpreted as care and support.

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Case study: Mai

The ADC received a report about Mai, an older woman from a culturally and linguistically diverse background who lives with her son.

Despite Mai being eligible for aged care support, her son, who is her aged care nominee, has cancelled her services. The report to the ADC came after Mai gave a message to a neighbour advising she was being kept locked in the apartment she shared with her son.

When we met Mai, she disclosed that her son had taken her phone and passport and was preventing her from going to church or seeing her friends. She told us that her son acted as her translator when engaging with her GP or any services and she was therefore unsure what was being communicated on her behalf and she was unable to raise any concerns. Mai also disclosed that her son was physically violent towards her whenever she attempted to resist his control.

ADC response

The ADC met with Mai and provided appropriate language support. She told us that she wanted the aged care services her son had cancelled, and to reconnect with her family overseas. The ADC also made a report to police in relation to Mai’s disclosures of domestic violence, including non-fatal strangulation.

Importantly, the ADC spoke with Mai’s care provider and GP to provide education and advice about decision-making rights and the importance of listening to Mai directly and with appropriate language support. The ADC also arranged for Mai to have a new passport issued and access to a phone.

Proportionality and timeliness in situations involving high risk of harm

While substitute decision-making should be a last resort, the ADC’s experience highlights the need for proportional and timely responses where there is imminent risk or catastrophic harm. In such cases, prolonged exploration of alternatives can itself cause serious harm. The ADC often uses Tribunal processes to disrupt harmful substitute decision-making, and to establish time-limited, reviewable arrangements that address immediate risk and restore pathways to supported decision-making.

For the ADC, NCAT orders are often used strategically to move from harmful and abusive substitute decision-making to alternative arrangements that address the current harm and are time-limited and subject to review (unlike EPOA or Enduring Guardianship arrangements). In limited circumstances, substitute decision-making can also work as a circuit breaker to restore the adult’s expressed wishes, their health and safety, and preferably restore supported decision-making over time.

Case study: Joan

The ADC received a report about Joan, a woman in her early 80s living with dementia. Joan was supported by her husband as she required assistance with all aspects of daily living. Joan no longer used intentional communication and was not able to mobilise independently.

Despite her high support needs and being approved for the highest level of aged care package, Joan’s husband only agreed to her receiving one hour of support per week. He acted as Joan’s substitute decision-maker, My Aged Care representative, and person responsible in relation to health care. In these roles, he had declined her access to further

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aged care support or palliative care; limited her access to food, such that she was described as ‘starving’; and refused to allow adaptive equipment in the home.

Although medical and allied health staff had recommended residential aged care to meet Joan’s needs, her husband declined, noting the adverse impact on his financial situation.

ADC response

Although extreme levels of coercive control were noted, only one individual support worker contacted the ADC with concerns about the arrangement. Our inquiries identified a long history of domestic violence perpetrated against Joan.

In this case, the ADC was concerned about the life-threatening risk to Joan, after initial attempts to have her hospitalised for assessment were blocked by her husband. We made an urgent NCAT application and were able to reconnect Joan with her son, who agreed to act as her private guardian. Joan was supported to remain at home with wraparound support from aged and palliative care services.

4. Opportunities to strengthen supported decision-making

There is a pressing need to reform guardianship, administration and decision-making legislation in NSW to address well-documented and longstanding issues, move to a stronger rights-based framework with a spectrum of decision-making arrangements, and embed supported decision-making as the default approach.

This legislative change is overdue, and it will be difficult to effect meaningful and widespread change to decision-making arrangements across service systems in NSW without it.

However, we consider that there are also non-legislative changes and improvements that can be made in the short-term, pending or concurrent with legislative reform, including:

  • Strengthening guidance on alternatives to guardianship and financial management There are opportunities to reduce unnecessary reliance on guardianship and financial management by strengthening guidance on alternatives to substitute decision-making, including the options that should be pursued and tested prior to submitting applications to NCAT. Clear, practical guidance that is tailored to key stakeholders, such as hospital social workers, disability and aged care providers, and families, could support earlier and more consistent consideration of supported decision-making options before applications are made.

    The guidance could also be framed within existing service systems, such as the NDIS and aged care sectors, noting that supported decision-making is already reflected in disability and aged care standards. Practical toolkits, such as an ‘Alternatives to guardianship’ resource, could be actively promoted and incorporated into agency and service processes to help to improve practice.

  • Greater exploration of decision supports through the NCAT application and hearing process There may be opportunities to strengthen supported decision-making through existing NCAT processes by looking into the decision supports the person has had access to

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prior to guardianship or financial management applications. With the aim of ensuring all options have been explored, application forms and early case management processes could identify information about what decision supports have been attempted, and whether reasonable accommodations have been provided to enable the person to express their will and preferences. These steps would further reinforce the notion that substitute decision-making is a last resort.

There may also be scope to improve decision-making consistency and enhance guidance for Tribunal members, staff and separate representatives on what constitutes appropriate and adequate decision supports and the need to give specific consideration to decision supports and accommodations in determining whether the person is in need of a guardian.

  • Building decision-making capability early In handling reports, the ADC sees a substantial number of young people with disability who have reached adulthood without exposure to decision support, and who have continued to have decisions made for them by parents and family members. The largest proportion of reports to the ADC about abuse, neglect and exploitation of adults with disability has consistently related to young adults aged 18-24 years. The ADC’s work on many reports about young adults with disability has highlighted opportunities to prevent and reduce alleged and actual abuse, neglect and exploitation of this cohort in their family, home and community.

    Embedding supported decision-making at the earliest point possible is important to build capability of young people with disability. Practical actions can be taken to support families, educators and services to have structured conversations about decision-making, autonomy and financial capability well before crisis points arise.

    This includes aligning supported decision-making with education initiatives that promote student capability and agency and encouraging the inclusion of decision-making and financial capability supports within NDIS plans for young people. Peer-led and co-designed training resources could support families and services to move beyond informal or risk-averse practices and toward structured supported decision-making from an early stage.

  • Strengthening supported decision-making within guardianship and financial management practice Within the current legislative framework, there is scope to further embed supported decision-making across guardianship (public and private) and financial management practice. This would have a focus on restoring autonomy wherever possible and reinforcing expectations that guardians actively seek and document the person’s views, explore opportunities to build decision-making capability, and support transitions away from guardianship where possible. Ongoing development of internal and external guidance, supported by targeted training, could help ensure supported decision-making principles are consistently applied in practice.

    The ADC supports the current six-month supported decision-making pilot project between NSW Council for Intellectual Disability (CID) and NSW Trustee and Guardian (NSWTG) that is testing an onboarding tool designed to better capture a person’s context, strengths, will and preferences, and the supports that enable decision-making. This pilot provides a useful opportunity to embed supported decision-making principles into practice. We note that CID brings deep expertise in supported decision-making and is working closely to progress supported decision-making as a genuine alternative to guardianship and financial management, rather than a precursor to it. Even where

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substitute decision-making orders are in place, the intent is to ensure decision-makers actively support skill-building and pathways back to greater autonomy.

There are also existing mechanisms within NSW legislation that can be more actively used to support people to regain aspects of financial decision-making, including authorisations that allow managed persons to deal with parts of their estate.5 However, there is currently limited public-facing information aimed at managed persons that explains these options in accessible, rights-based terms.

Practical steps could be taken to increase awareness of these existing provisions to support structured financial capability-building for people subject to financial management orders and help the gradual restoration of financial autonomy where appropriate. For example, this could include the provision of guidance these provisions to relevant agencies and providers that are involved with a person under financial management and:

  • the supports that can/should be provided to enable the person to build capability to make financial decisions

  • active steps that should be taken to provide relevant information to NSWTG about managed persons who could deal with their estate

  • strategies that may need to be canvassed with the person to reduce risks.

  • Reframing ‘capacity’ through a supported decision-making lens The Capacity Toolkit is a well-recognised and used toolkit.6 The toolkit includes information on supported decision-making and refers to making reasonable adjustments to the assessment process.

    However, it is our view that the Toolkit requires updating as the primary guidance is on assessing the person’s capacity via the ‘understand and appreciate’ test. A considered review and revision of the toolkit would provide an opportunity to shift practice by reframing assessments away from a narrow focus on capacity and toward decision-making capability – that is, ability + supports and accommodations.

    Reviewing and updating the guidance to embed a strengths-based, capability-focused approach that is co-designed with people with disability and inclusive of CALD and First Nations communities would support more consistent application of supported decision-making principles across health, legal and community settings.

  • Making supported decision-making a core workforce skill There are many resources that are available in relation to supported decision-making, including toolkits, factsheets, and online training modules7. However, despite this availability, supported decision-making is not yet consistently embedded as a core skill across frontline workforces. Constructive action could be taken to align training, service policies and regulatory expectations so that decision support is treated as fundamental practice in disability, aged care, mental health and health services. This

5 For example, NSW legislation provides mechanisms for people subject to financial management orders to regain aspects of financial decision-making, including through authorisations under section 71 of the NSW Trustee and Guardian Act 2009. 6 See https://dcj.nsw.gov.au/documents/resource-centre/capacity-toolkit/capacity-toolkit.pdf 7 For example, Cognitive Decline Partnership Centre’s resources on supported decision-making in aged care; La Trobe University’s Support for Decision Making Practice Framework; Inclusion Australia’s Make Decisions Real project and Supported Decision-Making Resource Directory; CID’s My Rights Matter hub; and the Mental Health Coordinating Council’s supported decision-making training modules.

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includes integrating supported decision-making into training linked to qualifications, professional development, supervision and on-the-job coaching, rather than relying on one-off training. Collaboration with regulators, training providers and workforce bodies could help establish supported decision-making as a baseline competency rather than a specialist add-on.

We note that the case studies in this submission also underscore the breadth of actions that could be taken as part of core service system delivery to apply supported decision-making in NSW, including:

  • making direct engagement with the person with disability the default in service interactions
  • adapting communication to the person
  • services setting clear expectations that decisions will be directed by the client
  • services actively seeking and giving effect to the adult’s voice, even where representative arrangements exist
  • providing clear guidance to nominees and representatives about role limits and accountability
  • understanding and using clear escalation pathways where there are concerns about harm, coercive control or exclusion
  • embedding supported decision-making as a ‘safety by design’ standard across service systems to prevent coercive control and other abuse
  • ensuring supported decision-making involves culturally safe practice, consistent access to interpreters, recognition of collective decision-making where preferred, and information about rights provided in meaningful ways, to build trust and support meaningful participation.

5. Moving forward to embed supported decision-making in NSW

The ADC consistently hears support from stakeholders for supported decision-making. NSW is now at a position of looking at how quickly and consistently it can be embedded across existing systems.

This submission demonstrates that supported decision-making is a practical, rights-based approach that the ADC applies daily across core functions. When adults are engaged directly, provided with time and the right supports they need to communicate, and protected from undue influence, they are frequently able to express their will and preferences, even in complex, high risk or coercive environments. Conversely, when systems fail to create these conditions, loss of autonomy, abuse and unnecessary escalation to substitute decision-making often follow.

The case studies illustrate that the misuse of informal, nominee and substitute decision-making arrangements is a common pathway through which abuse, neglect and coercive control are enabled. They also show that proportionate, time-limited use of substitute decision-making can, in some circumstances, function as a circuit breaker, to restore a person’s safety and bring opportunities for autonomy.

Embedding supported decision-making as business-as-usual across service settings is an essential part of a safety-by-design approach, especially to address the disproportionately high rates of abuse, neglect and exploitation of people with disability and the ways systems can inadvertently reinforce coercive control by failing to hear from the adult directly.

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The ADC strongly supports legislative reform to strengthen supported decision-making and safeguards in NSW. At the same time, progress on supported decision-making could also be made now through coordinated practice change across existing systems. The ADC supports the application of consistent supported decision-making practice across the systems people already interact with (health, aged care, disability, mental health, housing, justice and financial services), guided by the Australian Law Reform Commission’s National Decision-Making Principles and informed by lived experience.

Strengthening supported decision-making in NSW requires more than endorsement, it needs coordinated action across legislation, policy, practice and resourcing. The ADC also supports the establishment of a leadership function in a NSW government agency with a systemic, preventive and educative role that can provide guidance, capability uplift and practical tools for service sectors and other supports. The ADC is ideally placed to play such a role. Any such role would require clear legislative direction and sustained resourcing.

Without a clear shift to consistent leadership and implementation of supported decision-making, NSW risks remaining in a system in which supported decision-making is supported in principle, but substitute decision-making remains the default in practice, with real consequences for safety, autonomy and rights.

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Appendix

Shared language and key concepts

The following concepts are used throughout this submission to support a consistent understanding of how supported and substitute decision-making operate in NSW service environments.

Decision-making ability

The ability to understand, consider and communicate a specific decision. Ability varies by decision and may change day to day or throughout the day. Decision-making ability can be influenced by communication supports, environment and circumstances.

Decision-making needs and supports

Needs are the conditions required for a person to participate in decision-making, for example access to visual aids to assist in understanding, easy-read information or paced interaction. Some needs, such as access to an interpreter, arise from language or cultural context rather than disability. Supports are the adjustments that respond to and meet those needs. A person may have decision-making ability but be unable to exercise it if appropriate supports are absent.

Framework

The Australian Law Reform Commission’s supported decision-making principles align closely with the ADC’s operational experience and provide the strongest available national reference point to anchor a stronger approach to supported decision-making practice in NSW. They provide a national reference to strengthen supported decision-making, are already reflected in legislation in some other jurisdictions, and provide a practical, rights-based focus that could be consistently applied across different service systems.

Representatives

Individuals recognised in service or administrative contexts (such as nominees or authorised contacts) who assist with communication and engagement. Some representatives, for example NDIS plan nominees, may also make decisions within specific service systems, but they are not appointed through a tribunal or other formal legal instrument in the way substitute decision-makers are.

Most representative arrangements require the representative to consider or act in line with the adult’s wishes or what they believe the adult would choose. Although many representatives do this, in our experience representative arrangements can also be used to make decisions directly in conflict with the wishes of the person, as expressed through their words or behaviour.

Substitute decision-makers

People legally appointed to make decisions on behalf of an adult within a defined scope. In NSW, this includes tribunal or court appointed arrangements such as guardians or financial managers, or legal instruments such as enduring guardianship or enduring power of attorney. It also includes a ‘person responsible’ as defined in the Guardianship Act 1987, who may consent to certain medical and dental treatment where a person lacks decision-making capacity and choice. Substitute decision-making arrangements are decision-specific and should only be used in circumstances where a person cannot decide even with support, and informal arrangements are causing harm or are in dispute.

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It is important to note that a person may require a substitute decision-maker for some decisions, have autonomy to make some decisions independently, and require support to make other decisions.

Supported decision-making

Providing decision supports and adjustments as required to empower people with decision-making support needs to make their own decisions. Although the discussion about supported decision-making can become focused on the role of ‘supporters’, supported decision-making may only involve the individual and the person they are speaking with, such as their GP, with adjustments made to how information is provided and the pace at which it is provided. Supported decision-making can also be implemented through systems adjustments – for example, providing Easy Read resources or service navigation support to remove barriers for autonomous engagement. In NSW, supported decision-making functions as a practice approach rather than a single legislative model. It occurs informally or alongside administrative and legal frameworks.

Supporters

People who assist an adult to understand information, consider options, and communicate decisions. Supporters enable expression of will and preferences and should not make decisions for the person8. An adult may have multiple people provide support to them depending on the decision to be made and may also not require a supporter to make some decisions.

In our practical experience, supporters are often empowered to make decisions and speak for the adult. Thereby, the supporter begins to act in a substitute decision-making role. This tends to particularly be the case if connecting with the adult requires additional time or adjustments to communication, or if the decision involves a level of risk that services or family members are uncomfortable with.

8 Browning, M., & Rouget, D. How to Support Everyday Decision-making: A Guide for Supporters (Belonging Matters, 2023); https://mackayadvocacy.com.au/wp-content/uploads/2024/04/Download-Guide-Supported-Decision-Making.pdf

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