Submission No 39

SUPPORTED DECISION-MAKING IN NSW

Organisation: Kingsford Legal Centre, UNSW Australia

Date Received: 27 March 2026

UNSW SYDNEY

27 March 2026

Committee on Ageing and Disability Parliament of New South Wales By email: ageingdisability@parliament.nsw.gov.au

Dear Madam/Sir,

Short submission to The Committee on Ageing and Disability inquiry into supported decision-making for adults with disability and older people in NSW

Kingsford Legal Centre (KLC) welcomes the opportunity to provide these short submissions on supported decision making for adults with disability and older people in NSW.

For all case studies in this submission, names and identifying information have been changed to protect conﬁdentiality.

About Kingsford Legal Centre

Kingsford Legal Centre is a community legal centre providing free legal advice, casework and community legal education to people in south-east Sydney since 1981. As well as our generalist legal service, we specialise in discrimination law and run a state-wide Sexual Harassment & Discrimination Legal Clinic. We also collaborate with Redfern Legal Centre and the Inner City Legal Centre in a state-wide employment law service (the Employment Rights Legal Service).

KLC is part of the UNSW Sydney Faculty of Law & Justice and provides clinical legal education to over 700 UNSW law students every year. We provide students with experiential learning opportunities across all KLC’s work.

KLC’s Health Justice Partnership

In addition to our generalist legal service and specialist state-wide services, KLC runs a specialist Health Justice Partnership (HJP) with the Prince of Wales Hospital (POWH) and Eastern Suburbs Mental Health Service (ESMHS). Health Justice Partnerships are collaborations between legal and health services that support people who are both more likely to experience chronic health conditions and have unmet legal need. As part of our HJP, our lawyers regularly attend POWH hospital campus to see patients and follow up with them after they are discharged. KLC works closely with health professionals to provide this service, including social workers, psychologists and transitional aged care teams.

In 2024/2025 our HJP helped 153 clients by providing 202 instances of legal advice, performing 77 legal tasks and opening 42 case ﬁles. 77% of our HJP clients reported living with disability and/or mental health, while 90% reported that they were experiencing ﬁnancial hardship.

Our HJP was independently evaluated by NSF consulting in 20241. That report found that our HJP model was cost-effective and saved considerable time for busy health workers. It also had signiﬁcant positive beneﬁts for patients who reported feeling less stressed and more conﬁdent about working through their legal issues. The HJP managed to reach high numbers of clients experiencing disadvantage, particularly people living with complex mental health conditions and intersecting health, social and legal needs.

While the HJP accepts referrals for patients of any age, the numbers of older patients referred to us has steadily increased in the last four years. In the 2021/2022 year, 20% of our HJP patients were aged 65 or over. This had risen to 39% in 2024/2025. This increase is primarily explained by the HJP’s focus on guardianship law and “planning ahead” documents generally. KLC provides expert advice and legal assistance in drafting Enduring Powers of Attorney and Enduring Guardianship documents for older patients, providing advice to patients and their families about guardianship laws generally and other areas of law that commonly apply to them (including social security, housing and credit/debt matters). We also provide advocacy in NSW Civil and Administrative Tribunal hearings in the Guardianship Division. This work is multidisciplinary in nature, with KLC solicitors working collaboratively with health teams from both inpatient and outpatient aged care

Endorsement of submission by the Seniors Rights Service

KLC has had the beneﬁt of reading the submission made to the Committee by the Seniors Rights Service (SRS) dated 12 March 2026. SRS is an accredited specialist Community Legal Centre that has provided assistance to older people in NSW for over 40 years. KLC endorses those submissions and the recommendations made by SRS based on its extensive specialised advocacy experience and the learnings from its community consultation. We echo SRS’s recommendation for formal mechanisms to be put in place to enable supported decision making, and for funding to be provided to support the move from substituted to supported decision making.

Planning ahead documents and residential aged care admissions- a case study

In our experience, the current status quo in NSW in relation to substitute and informal decision-making is insufficient to protect the rights, dignity and autonomy of older people and adults living with disability. It is also inadequate in dealing with situations where people live with ﬂuctuating mental illness and require a more ﬂexible framework that affords support when they need it, rather than the currently inﬂexible substitute decision-making model.

We make the following observations in relation to paragraph (a) of the Terms of Reference- The lived experience of people seeking to access appropriate support to make decisions for themselves.

1 NSF Consulting, 5 Years of Impact- Evaluation of the Health Justice Partnership between Kingsford Legal Centre, Prince of Wales Hospital and the Eastern Suburbs Mental Health Service, (September 2024), https://www.unsw.edu.au/content/dam/pdfs/law/klc/research-reports/5%20Years%20of%20Impact-%20Eval%20of%20HJP%20between%20KLC%2c%20POWH%20and%20ESMHS%20(1).pdf

Case study- Jay

Jay is a 75 year old man who lives with his adult daughter, Mel. Mel has multiple sclerosis, uses a wheelchair and needs home care assistance. Jay was brought into hospital after a fall. While in hospital he was also diagnosed with mild cognitive decline. Jay also has a son, Alex, who lives separately.

Jay’s treating health team becomes concerned that he may not be able to live safely at home, even with aged care home support. Jay is adamant that he returns home in order to live with Mel, even though he understands there is a risk of another fall. Jay does not have any substitute decision-making documents in place. The health staff ask KLC to see Jay to help him execute Enduring Power of Attorney (EPOA) and Enduring Guardianship (EG) documents. When we see Jay, he is unsure of his options. While he is unclear at times, we work out that he is much more lucid when we visit him after he has taken his medication, so we planned our later appointments accordingly. Jay agrees to the EPOA but refuses to appoint an Enduring Guardian. After Jay had already been in hospital for two months, Jay’s treating health team applied to the Guardianship Tribunal for orders appointing the Public Trustee as Guardian, as no residential aged care provider would accept Jay without either Guardianship orders or an EG in place. Jay felt like no-one was listening to him.

The above case study highlights some of our main concerns with the current substitute decision-making framework in NSW:

Pressure to prepare documents to access residential aged care- many of the older patients referred to us from the hospital are told that they cannot be offered a place in residential aged care without an EPOA and EG in place. While this approach by residential aged care providers may not be legally correct, the pressure on patients, families and health staff to have these documents in place is real. This creates inappropriate and unfair stress on patients and their families to execute important documents that require deep consideration and honest family discussions, that ideally should happen in a more considered and unrushed way. In the case study above, we spoke to our client over 4 separate appointments to assess his capacity and provide advice on the documents. It was clear that he needed further time to consider our advice on the EG, consider his options and talk to his children and friends.
Dignity of risk- In this case study the most important consideration for Jay was making sure Mel had adequate support, and that he was able to live with Mel for as long as possible. Jay understood that there was a risk of another fall if he went back home, but he was willing to both take that risk and discuss further assistance and interventions that might make him safer at home. We agree that the hospital staff had serious concerns about Jay’s safety and wellbeing in this situation. However, Jay had the right to live according to his wishes with as few imposed restrictions as possible, even though he was experiencing mild cognitive decline.
Prioritisation of family supports- we were concerned that in this case the Guardianship application recommended that the Public Trustee be appointed as Jay’s guardian, without a family conference involving Jay, Mel and Alex having taken place. Jay expressed to us that he was much more comfortable with his children making decisions about his health and accommodation when he was unable to do so, even though he was reluctant to give them a broad, unlimited function to make decisions about where he lived. In the end, the Tribunal appointed his children to be Jay’s guardians. A supported decision-making approach would

have been less stressful than the Guardianship application and would have allowed Jay more autonomy in how he made decisions with the support of his children. It would also ground cultural change in our health and aged care systems to prioritise the wishes of older people and prepare them for these discussions at an earlier stage in their lives, rather than waiting until the decision and conversation is forced upon them by the need to consider residential aged care.

We need widespread community education on ‘planning ahead’- In this case, neither Jay nor his family had any previous knowledge of planning ahead instruments and the importance of having family discussions about supportive decision-making. It is critical that there be widespread and free community education about supported and substitute decision-making arrangements, and the importance of older people advance planning while they still have the capacity to do so. Too often we receive referrals where capacity is already a concern or, regrettably, lost and those caring for the older person are left with the time-consuming administration of arranging for an appointment to be made under the relevant legislation. KLC frequently runs free community legal education sessions in partnership with local community organisations on ‘planning ahead’. These sessions are very popular and well-attended, however we are only able to run these sessions in our local community. Better funding for specialist seniors’ services and generalist community legal centres to provide community education sessions to their local residents is required to provide greater awareness of the important role that these documents play. Funding should also be allocated to better support those holding enduring appointments. The Australian Human Rights Commission recently found that only a small portion of appointed decision-makers felt they understood their responsibilities very well when they started their role.2
Increased free legal assistance services, particularly through health justice partnership models- Providing this service is critical in a HJP setting. CLCs are well-placed to do this work. As outlined in Jay’s case, we had 4 separate appointments with Jay to discuss his options before representing him in the Tribunal proceedings. We provide a best-practice approach in this work, prioritising the needs of clients and seeing them where needed: in the hospital, in their homes, or at our various outreach locations. Despite this, most Australians have not taken steps to arrange EPOAs, meaning that their wishes are not always being met, matters end up in Tribunals causing unnecessary stress and delay at a difficult time, and opportunities for the abuse and ﬁnancial exploitation of older people are created. The NSW Government should better fund CLCs like KLC to be able to expand their health justice partnership work, including in advising on substituted and supported decision-making.

Please let us know if you have any questions about this submission. You can reach us at legal@unsw.edu.au.

Yours faithfully, KINGSFORD LEGAL CENTRE

redacted Emma Golledge Director

redacted Dianne Anagnos Deputy Director

2 Australian Human Rights Commission, Empowering futures: A national survey on the understanding and use of ﬁnancial enduring powers of attorney, September 2024, https://humanrights.gov.au/our-work/age-discrimination/publications/empowering-futures-report-enduring-powers-attorney-2024