NDIA Accountability Project

Parliamentary Inquiry into Supported Decision Making in NSW

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Submission No 40

SUPPORTED DECISION-MAKING IN NSW

Organisation: Advocacy Law Alliance

Date Received: 27 March 2026

27 March 2026

Mr. Cameron Murphy MP The Chairperson, Committee on Ageing and Disability NSW Parliament

By email: ageingdisability@parliament.nsw.gov.au

Dear Committee Chair,

Re: Parliamentary Inquiry into Supported Decision Making in NSW

About Advocacy Law Alliance Ltd

Advocacy Law Alliance Ltd. (ALA) is funded to deliver free, independent, disability advocacy and legal services across metropolitan, regional and rural NSW, through two programs (Disability Advocacy and Mid North Coast Legal Centre). Our staff are disability advocates, lawyers and community engagement workers. We seek to offer the Committee reflections from our experiences of working across regional NSW. We are grateful for the opportunity to make this submission and trust it may inform the Committee’s deliberations.

ALA’s programs have different regional footprints across NSW. Disability Advocacy (DA) covers a third of NSW, from Western Sydney/Blue Mountains to Lismore and west to Broken Hill. DA supports over 5000 clients annually (all of whom live with disabilities). DA has developed principles that embed supported decision making into every aspect of advocacy. DA works to ensure that clients with disabilities, including impaired capacity, are heard and listened to on major issues affecting their lives.

Mid North Coast Legal Centre (MNCLC) covers 6 Local Government Areas from Nabiac/Taree to Coffs Harbour and supports approximately 1500 clients annually with civil law issues. 32% of CLC clients live with disabilities. MNCLC prioritises supported decision making when working with clients with impaired capacity.

We note the Committee is examining supported decision making with reference to:

  • (a) the lived experience of people accessing support to make decisions
  • (b) barriers across systems (legal, financial, health, education, employment, care)
  • (c) distinct experiences for Aboriginal and CALD communities
  • (d) the ADC’s role and functions
  • (e) potential legislative amendments
  • (f) ensuring substitute decision making remains a limited, last-resort measure

This submission responds to items and makes recommendations in line with (a), (b), (d) and (e) of the Terms of Reference of this Inquiry.

Supported Decision Making

At its core, Supported Legal Decision Making involves proactively creating the conditions to ensure “all steps are taken to maximise a person’s ability to engage with and understand their legal matter.”1

Steps may include ensuring that

  • Plain language is used to explain a legal matter
  • More time is given to a person to think through their situation
  • Communication support is offered to facilitate the expression of their will and preference
  • The meeting environment is set up to ensure that a person is as comfortable and confident in speaking as possible, so that they can tell their story in their own way.

In NSW, state legislation does not currently define, provide for or require attempts to be made to support legal decision making in people who experience impaired capacity. The framework currently in place allows solely for substitute decision making. This will be discussed further, below.

Human Rights Obligations (CRPD)

At the heart of legal personhood is the presumption that people who are adults can make decisions for themselves, regardless of whether those decisions are ones that others might consider “correct”2. Both older people and people with disabilities may, however, be subject to culturally entrenched assumptions that they lack capacity to make decisions. The UN Convention on the Rights of Persons with Disabilities (CRPD)3 emphasises the right of a person with disabilities to make one’s own decisions and to receive support to do so. A human-rights approach centres people’s autonomy and participation in institutions, actions and communities.

A human rights framework is vital for promoting and protecting fundamental rights, including an adult’s right to make decisions about matters that impact them. Ultimately, we submit that a human rights approach should be enshrined in NSW legislation through a Human Rights Act4, similar to that in other states such as Victoria, ACT, and Queensland. However, another opportunity to uphold our human rights obligations under the CRPD is available to the NSW Parliament through championing, educating and amending existing legislation to require supported decision-making principles to be attempted in all relevant situations impacting on people with impaired capacity.

ALA’s legal and advocacy practices are delivered under a human-rights framework consistent with the CRPD and the National Disability Advocacy Framework5.

Human Rights Framework adopted by DA

Staff are trained in this framework in working with their clients and are held accountable to it through supervision. An example of this is in the client story of Elizabeth, below.

Client Story – DA

At a case conference for Elizabeth, a woman with psychosocial disability, service providers spoke about her mental health, supports and housing needs - but did not speak to her. She was physically in the room but not engaged in conversation. When her Disability Advocate asked the facilitator to directly involve her, Elizabeth expressed clear preferences about where she wanted to live and what support she did and did not want.

This case highlights a systemic tendency to exclude people from decisions about their own lives, even when they can participate with the right support.

Recommendations:

The NSW Parliament consider a Human Rights Act in line with other eastern seaboard states, where protection for the right to support for decision making6 is included.

The Ageing and Disability Commissioner champions awareness and understanding of supported decision-making principles, with examples of how different community workers and private sector organisations might implement them as policy and practice.

The Ageing and Disability Commissioner develops a series of supported decision-making principles which could be included as preferred learning topics with standard competency frameworks for registered training organisations that provide training to people in NSW who wish to work in the disability sector. Alternatively, the Ageing and Disability Commission develop and deliver training for disability and community service workers, lawyers, interpreters, aged care staff, financial service providers and health clinicians on supported decision making.

Legislative Barriers in NSW

The Guardianship Act 1987 (NSW) (“the Act”) is the legislative framework with which our clients with impaired capacity most frequently interact. The Act does not currently include principles of supported decision-making. The NSW Law Reform Commission (2018)7 recommended introducing a formal supported decision-making scheme into the Act. However, this has not yet been adopted by the NSW Parliament.

Section 4 of the Act (General Principles) 8 uses permissive language (“should”) rather than requiring parties in proceedings to actively support people with impaired capacity to express their will and preference in relation to any matter. An intention to consult with people with impaired capacity is recommended but not required. We acknowledge that there are some medical or physical circumstances where this might be impossible but believe that legislation should ensure that substitute decision making occurs only as a last resort or in limited and defined circumstances.

This legislative gap creates barriers including:

  • Inconsistent practice across health, aged care, legal and financial sectors: Each sector currently relies on different frameworks to guide their processes and approaches. We submit that placing the person at the centre of all decisions made in relation to them should be the core principle underpinning practice across every sector.
  • Limited accountability once a Tribunal appoints a substitute decision maker: After appointment, there are few mechanisms to ensure ongoing scrutiny of how a person’s affairs are managed. We submit that accountability is best strengthened by requiring support for a person’s decision making to the greatest extent possible, rather than defaulting to substitute decision making.
  • Systemic over-reliance on substitute decision making, with insufficient efforts to consult the person: Without a legislative requirement to attempt supported decision making, there is an ongoing risk that appointed decision makers will not meaningfully engage with the person or seek out opportunities to facilitate their will and preferences.

Guardianship Tribunal

We acknowledge the expertise and intentions of Guardianship Tribunal Members and the processes developed at the Tribunal in seeking to support people with impaired capacity to make their own decisions as much as possible. However, once proceedings have concluded and a decision maker appointed, there may be no requirement to continue to consult or hear from the person with impaired capacity. We believe that the inclusion of supported decision making in the Act would both strengthen Tribunal processes and send a message to all parties that the person subject to proceedings should be consulted as much as possible, including after any appointment of decision makers is made.

We note that the Commonwealth Aged Care Act (2024)9 has now introduced a formal opportunity for supported decision making for people within that system. This serves to highlight the absence of this for people unable to access it by reason of their age. We endorse the submission by Seniors Rights Service NSW, a community legal centre working for older people who cannot otherwise afford a lawyer, for specialist information in relation to supported decision making processes for their clients.

Client Story - DA

Jeff has a physical disability and lives in community housing under a financial administration order managed by the Trustee and Guardian. After a minor incident in his unit, the housing provider issued several repair charges - some unrelated to the incident or even his tenancy.

These were approved without checking their accuracy or speaking with Jeff. With support from a family member, he challenged the charges and a tribunal eventually ruled in his favour, ordering reimbursement. His family member remained frustrated that the decision-maker accepted the housing provider’s account without consulting Jeff or considering his version of events.

Recommendations:

The Ageing and Disability Commissioner champions changes to the Guardianship Act to enable legislated expectations of supported decision making both during Tribunal proceedings and as an expectation on appointed decision makers.

The NSW Parliament drafts amendments to the Guardianship Act to ensure that supported decision making underpins all approaches when assisting people with impaired capacity both during and after Tribunal proceedings.

Client Stories from Regional NSW – Supported Decision Making

Rosalie, a client of MNCLC, was placed in aged care during a natural disaster, but was never supported to express her own views and was discouraged from obtaining legal help based on assumptions of her capacity. Rosalie had been living independently (with community support) prior to the crisis, but the disaster, combined with some health issues, led well-meaning community members to assume that her safety was only assured in aged care. Rosalie was anxious and upset about this and through others, sought legal help to return home.

This case highlights how assumptions of incapacity and system pressures may, without legislative protection, override a person’s ordinary access to supported decision making.

After a fall, DA client Theo, an older man with mild cognitive impairment, was assessed in hospital. Staff assumed he couldn’t understand discharge options because he was tired and confused after treatment. No easy-read or visual supports were offered, and staff made decisions directly with his relatives. When an advocate visited the next day, Theo was calm, able to communicate clearly when given time, and expressed that he wanted to return home with support rather than enter residential care.

This case shows how time pressure and rushed assumptions can override a person’s right to supported decision making.

Elena, a young CALD woman with an intellectual disability, wanted to sign a lease for her first flat. The real estate agent insisted she needed “a guardian to sign for her”. Elena was given no opportunity to have the terms explained in plain English. With advocacy support from DA, she reviewed the lease using visual prompts and verbal explanation. She understood the key elements and made her own decision to proceed.

This case shows the need for workforce capacity to understand decision-support obligations rather than defaulting to substitute decision makers.

Experiences of a Lawyer using Supported Decision-Making approaches.

MNCLC and Disability Advocacy see great value in the Ability Rights Centre Supported Decision Making Guide for Legal Practitioners10. This Guide has provided helpful insights into how lawyers can effectively adopt supported decision-making approaches when working with clients with impaired capacity. MNCLC delivers a specialist legal program in conjunction with Disability Advocacy, called Disability Law NSW. The perspective of a lawyer in the Disability Law program is offered, below, for the consideration of the Committee. We submit that this approach is one which the legal profession, the community, and professional sectors are easily able to implement.

‘Supported decision-making is central to ethical, client-led practice for every Disability Law solicitor. Disability Law gives discrete legal advice to people in regional NSW who live with diverse disabilities across a wide range of legal issues. Supported decision-making sits at the core of our work and recognises that every person has the right to make their own choices, and that disability does not diminish legal personhood. Instead of substituting a client’s will or acting paternalistically, our role as solicitors is to provide information, advice, and guidance while remaining flexible and adaptable to ensure the client understands the law, their options and can comfortably express their preferences from an informed and empowered position.

For solicitors working in the Disability Law program, this approach is essential because clients often engage with the service while navigating complex systems, such as

  • the National Disability Insurance Scheme (NDIS) and Centrelink,
  • are facing discrimination in education and employment,
  • are involved in consumer law and contract law disputes or
  • find themselves subject to litigation.

Understanding the law and their legal rights can feel inaccessible and overwhelming, especially for clients experiencing cognitive impairment, psychosocial disability, communication barriers or limited/no legal literacy. Supported decision-making ensures that the solicitor takes active steps to make legal processes understandable, using plain language, visual aids, additional time, and working collaboratively with disability advocates and carers (while maintaining the client’s autonomy and respecting their freedom of choice).

In practice, supported decision-making strengthens the solicitor - client relationship. In all Disability Law matters, especially in discrimination complaints, or challenges to administrative decisions about a NDIS plan, it is critical that the client’s own views, not just those of family members, service providers, or other supporters, are identified and respected. This approach also guards against the risk of undue influence and ensures that the solicitor’s advice aligns with the client’s expressed goals. Because the Disability Law program provides independent legal advice, maintaining this independence requires direct engagement with the client in providing legal advice, attentiveness to who is speaking and whether the client is being empowered to speak for themselves.

We frequently advise people with disabilities who also have limited resources, limited support networks and limited legal knowledge, and the primary focus of our work is to help them understand and protect their rights. This is particularly important when our clients are experiencing significant power imbalances. For example, an NDIS participant advocating for increased disability support funding in the Administrative Review Tribunal is often self-represented and the National Disability Insurance Agency (NDIA) are represented by experienced and highly trained barristers. A significant component of the Disability Law program is educating clients about their legal rights and the legal process to assist them through the complex and overwhelming processes involved, ensuring they have the strongest opportunity to obtain the funding and support they need each day and throughout their lives.

As solicitors who adopt the supported decision-making model, we can model best-practice principles and challenge outdated assumptions about capacity and disability to promote broader cultural change in favour of autonomy, inclusion, and the human rights of people with disability. We believe that supported decision-making is not only a legal and ethical obligation but a practical tool that enables solicitors to deliver high-quality, person-centred services. It ensures that the work of Disability Law remains grounded in dignity, respect, and the understanding that people with disability are experts in their own lives.’

Conclusion

ALA is grateful for the chance to offer these considerations to the Committee. We believe that the NSW Parliament and the Ageing and Disability Commissioner should take proactive steps to introduce supported decision making to the legislative system in NSW. Additional training and information about supported decision making and how it looks in practice should be championed by the Commissioner. We also believe that the NSW Parliament should introduce a Human Rights Act as a standard to which people with disabilities can look for the preservation and protection of their rights. ALA has reviewed and approved these de-identified case studies for inclusion in this submission.

Should you have any questions, or if ALA can assist further with information in support of this submission, please do not hesitate to contact us on redacted.

Yours sincerely

redacted Jane Titterington for Advocacy Law Alliance Ltd