NDIA Accountability Project

Supported Decision-Making in New South Wales

‹ PrevPage 1 of 11 · Source p. 1Next ›

Submission

No 5

SUPPORTED DECISION-MAKING IN NSW

Organisation: Elder Abuse Action Australia

Date Received: 5 March 2026

Supported Decision-Making in New South Wales 2026

Supported Decision-Making in New South Wales

About Elder Abuse Action Australia

Elder Abuse Action Australia (EAAA) is the national peak body addressing elder abuse in Australia. Established in 2018, EAAA works to prevent harm and alleviate the distress and disadvantage caused by the abuse and mistreatment of older people.

We provide national leadership through evidence-informed advocacy, education and capacity building and the delivery of practical resources that support prevention, early identification and effective response to elder abuse. Our work focuses on improving access to help, strengthening system responses and upholding the rights, dignity and safety of older Australians.

EAAA’s reach and influence has grown significantly due to biennial elder abuse conferences and Compass.info, Australia’s national information hub on elder abuse. Compass provides trusted, accessible information on recognising, preventing and responding to elder abuse, and acts as a key pathway to support services for older people, their families, carers and professionals. The platform plays a critical role in reducing barriers to help-seeking and relieving distress and in the 2025 Financial Year attracted more than 500,000 unique visitors.

As a membership-based organisation, EAAA brings together lived experience, frontline services, researchers, and policymakers from every jurisdiction. We collaborate with governments and stakeholders to inform policy development, strengthen practice and build coordinated, effective responses that improve outcomes for older people and the broader community.

For enquiries please contact:
redacted - Policy Manager
redacted
redacted

We acknowledge the Traditional Owners of country throughout Australia and recognise the continued connection of Aboriginal and Torres Strait Islander people to Country, Island Home, land, waters, community and culture. We pay our respects to Elders past and present. Sovereignty was never ceded. It always was, and always will be, Aboriginal and Torres Strait Islander land.

EAAA is committed to ensuring equitable and inclusive responses to end elder abuse for people with diverse characteristics and life experiences

Introduction

Elder Abuse Action Australia (EAAA) welcomes the opportunity to provide a submission to the NSW Parliamentary Inquiry into Supported Decision-Making and commends the NSW Government on prioritising this important and long-neglected area of reform. Decision-making autonomy is a fundamental human right^1, but for many older people or people living with a disability or cognitive impairment it is a right that is often overlooked, limited, or removed altogether^2.

The prevailing reliance on substitute decision-making is grounded in the outdated assumption that decision making capacity is binary^3, in that an individual either has or does not have capacity. Contemporary research and lived experience of people with cognitive impairment has repeatedly confirmed that capacity is fluctuating, context-specific and decision-specific^4. Capacity can also be strengthened or diminished on the basis of the supports available^5. A modern and inclusive decision-making framework must reflect this reality.

Australia’s obligations under the United Nations Convention on the Rights of Persons with Disabilities (CRPD) are also in contradiction with the current reliance on substitute decision-making in New South Wales legislation and institutions, with Article 12 of the Convention reading:

“States shall recognise that persons with disability enjoy legal capacity on an equal basis with all others in all aspects of life.

State parties shall take appropriate measures to provide access by persons with disability to the support they may require in exercising their legal capacity.

State parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights laws. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person and are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible, and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.”^6

In practice this means that Australia, and by extension all states and territories, as a signatory to the CRPD, is required to provide appropriate supports to people to maintain autonomy and the right to make their own decisions. Central to this is the concept of ‘dignity of risk’, which is the recognition that all people have the right to make decisions even if those decisions carry risk or may be considered by others to be ‘bad’ decisions^7.

Supported Decision-Making in New South Wales 2026

Autonomy can be supported and risk minimised by ensuring that people are supported to understand potential risks during the decision-making process^8.

This submission draws on EAAA’s ongoing commitment to human rights and dignity for all people regardless of age or disability, our 2026 Supported Decision-Making Position Statement and on a recent survey of our NSW-based members in relation to this inquiry. These members were made up of both organisations and individuals, including those who have acted in substitute decision-making roles such as enduring powers of attorney. Their insights highlight and reiterate opportunities and challenges of reform in this area, and the need for urgent legislative, policy, and cultural change.

EAAA is pleased to offer the following three recommendations to the Inquiry:

  1. Amendments to legislation including the Guardianship Act 1987 (NSW) and the Powers of Attorney Act 2003 (NSW) to embed supported decision-making
  2. Autonomy and safety are pursued together and not treated as competing priorities
  3. Investment in education, awareness and cultural change across NSW systems

Recommendation One: Amendments to legislation including the Guardianship Act 1987 (NSW) and the Powers of Attorney Act 2003 (NSW) to embed supported decision-making.

In recent years there has been a clear understanding by many Australian jurisdictions that a shift towards supported decision-making must occur to better ensure the dignity and autonomy of people living with disability or cognitive impairment^9. This understanding has for the most part resulted in minor policy shifts rather than broader legislative reform^10.

To ensure structural change that defies ageist or ablest assumptions and reverts easily to a substitute decision-making framework NSW must go further. This requires explicit legislative recognition of the non-binary nature of capacity and for substitute decision-making to be explicitly positioned as a last resort only option once all supported decision-making options have been exhausted. It also requires legislative recognition of Australia’s obligations under CRPD, including review of substitute decision-making processes for those for whom decision-making capacity fluctuates^11.

NSW’s current relevant legislative framework, primarily the Guardianship Act 1987 (NSW)^12 and the Powers of Attorney Act 2003 (NSW)^13, is grounded in a substitute

Supported Decision-Making in New South Wales 2026

decision-making paradigm. These Acts do contain some principles that reflect the importance of autonomy, however they do not recognise supported decision-making, nor do they require appointed decision-makers to prioritise the wills, preferences, and values of the person with whom they are making decisions^14,^15.

To align with contemporary understandings of capacity, the CRPD, and the principles of dignity of risk, EAAA recommends the following amendments to the Acts.

The Guardianship Act 1987 (NSW)

The replacement of all references to actions in the ‘best interests’ of the person under guardianship be replaced with ‘in accordance with their interests, preferences and values’.

The addition of a new Part establishing the right to supported decision-making wherever possible which includes:

  • A statutory definition of supported decision-making
  • A requirement that all practicable supports be provided before any finding of incapacity
  • An explicit acknowledgement that the types of support required will vary according to the individual and their circumstances
  • A recognition that capacity is decision-specific, context-specific, and can fluctuate
  • An obligation to document the supports attempted before seeking guardianship.

Amendment to Section 3 (Definitions) in respect to the definition of “person in need of a guardian”:

  • Replace ‘totally or partially incapable of managing his or her person’ with ‘has exhausted possible supports to allow for autonomous decision making’.

Amendment to Section 4 (Principles) which currently emphasises welfare and best interests:

  • Replacing ‘welfare and interests’ in 4(a) to ‘will, preferences, and rights’
  • Explicitly requiring guardians and tribunals to consider the person’s values, identity and background
  • Embedding dignity of risk as a general principle.

Amendment to Sections 14-16 to ensure that supported decision-making tools have been provided prior to the appointment of a guardian:

  • Requiring evidence that supported decision-making strategies have been attempted and exhausted before an order is made
  • Requiring NCAT to consider whether decision-specific support or orders could avoid the need for guardianship
  • Limiting guardianship orders to the least restrictive scope and duration.

Supported Decision-Making in New South Wales 2026

The Powers of Attorney Act 2003 (NSW)

The replacement of all references to actions in the ‘best interests’ of the principal be replaced with ‘in accordance with their interests, preferences and values’.

The addition of a new Part setting out guiding principles that explicitly recognise:

  • The presumption of capacity
  • The right to make decisions with support
  • Respect for will, preferences and values
  • A commitment to the least restrictive option
  • The right to autonomy, dignity, and participation.

The addition of a new Part: Supported Decision-Making Agreements to create a less restrictive alternative to enduring powers of attorney which:

  • Allows adults to appoint one or more “supporters”
  • Specifies the scope of support
  • Clarifies that supporters do not make decisions
  • Provides formal recognition for institutions.

New Definitions under Section 3 (Definitions) to define:

  • “Supported decision-making”
  • “Supporter”
  • “Decision-making support agreement”
  • “Capacity” as non-binary, fluctuating, context-specific and decision-specific.

Amend provisions on the duties of attorneys to utilise supported decision-making mechanisms first:

  • Require attorneys to take all practicable steps to support the principal to make their own decisions.
  • Attorneys to give effect to the principal’s will, preferences, and values, not ‘best interests’
  • Attorneys to document how they attempted to support decision-making.

Enable NCAT to recognise and review supported decision-making agreements including:

  • Validating or revoking supported-decision-making agreements
  • Resolving disputes between supporters, attorneys and third parties
  • Order additional safeguards where necessary.

Recommendation Two: Autonomy and safety are pursued together and not treated as competing priorities.

A persistent barrier to meaningful supported decision-making reform is the misconception that autonomy and safety exist in tension, and that increasing one

Supported Decision-Making in New South Wales 2026

necessarily diminishes the other^16. This false dichotomy has historically driven overly restrictive practices in response to perceived risk^17, particularly for older people or those living with disability or cognitive impairment. EAAA members operating New South Wales reported that not only should autonomy and safety not be viewed in opposition, but seen as mutually reinforcing. When people are supported to understand their options and express their preferences, they are better equipped to identify risks, seek assistance, and maintain protective social connections.

Members also highlighted the intersection of ageism and ableism in the way decisions are often made for older people or people living with disability or cognitive impairment under the guise of benevolence. The intent of “doing good” can come at the expense of the person’s values, beliefs, and who they are as a person. As one EAAA member told us:

“It’s a matter of human rights and respect for the individual that their wishes be honoured.”

EAAA therefore urges the Inquiry to promote a framework in which autonomy and safety are pursued together with dignity of risk embedded as a guiding principle. This should include ensuring that risk assessments do not default to paternalistic assumptions and that professionals are supported to facilitate decision-making by or with the individual even in complex circumstances. Substitute decision-making should only occur when all supported decision-making options have been exhausted, and it must be acknowledged that even people with impaired capacity may be able to make informed decisions including decisions that carry risk.

Maintaining autonomy is not only central to upholding human rights and dignity, but empowers an individual^18, challenging internalised ageism and ableism and acting as a protective factor against abuse. Conversely, when people are shielded from risk they are denied the ability to build confidence^19, develop important life skills^20, and understand consequence^21.

Recommendation Three: Investment in education, awareness, and cultural change across NSW.

Legislative reform, as outlined in recommendation one of this Submission, is essential to embedding and guaranteeing the right to supported decision-making wherever possible, however this cannot happen in isolation if NSW intends to make meaningful change. A broader shift in societal and institutional attitudes is required, particularly in relation to assumptions about capacity for people living with dementia or other forms of cognitive impairment.

EAAA members expressed concern that supporters or substitute decision-makers are often referred to instinctively, particularly in health and aged care settings without engaging with the individual themselves. This practice is not only inconsistent with

Supported Decision-Making in New South Wales 2026

human rights, the CRPD, and supported decision-making^22, but is inherently ageist and ablest^23.

The introduction of the Aged Care Act 2024 (Cth) increases the urgency of this cultural shift, as the roles as supporters and representatives become increasingly formalised^24. Clear expectations and holistic education are required to reduce the risk that institutions will rely on assumptions rather than engaging with the person themselves.

EAAA recommends a coordinated, statewide awareness strategy that includes:

  • Training for professionals on supported decision-making, fluctuating capacity and dignity of risk
  • Practical case studies to support policy implementation and build confidence in applying supported decision-making in real world contexts
  • Resources for families, carers, supporters, and appointed decision-makers to understand their obligations to prioritise will, preference and values
  • Public awareness campaigns to challenge binary assumptions about capacity.

There was overwhelming support among members for educational campaigns, with many noting that without cultural change, supported decision-making risks remain theoretical rather than embedded in practice.

Conclusion

This Inquiry into supported decision-making provides a critical opportunity for NSW to modernise its legal and policy frameworks. A commitment to supported decision-making is vital to uphold Australia’s obligations under the CRPD but requires a shift in how capacity, autonomy and risk are understood across law, policy, and everyday practice. The experiences shared by EAAA members highlight that people with a disability or cognitive impairment continue to encounter systems that default to substitute decision making and rely on outdated assumptions about capacity. These assumptions not only undermine human rights, they also limit people’s ability to participate in the decisions that shape their lives.

A more contemporary approach must recognise that decision-making capacity is rarely absolute. It fluctuates, it is shaped by context, and it can be enhanced or diminished based on the supports in place. Embedding this across NSW systems would bring practice into alignment with the CRPD and with the lived experience of those who rely on these frameworks. It would also assist in dismantling the ageist and ableist attitudes that too often drive paternalistic approaches under the guise of protection.

Reform must therefore be both structural and cultural. Legislative change is essential to ensure that supported decision-making is recognised, prioritised, and safeguarded. Laws alone however cannot shift long-standing assumptions or processes. Meaningful change will depend on sustained investment in awareness, education and practical

Supported Decision-Making in New South Wales 2026

tools that give professionals, loved ones, and institutions the confidence to engage directly with individuals and uphold their will, preferences, and values.

In committing to broader transformation New South Wales can take the national lead in creating systems that respect autonomy, promote safety through empowerment rather than restriction, and uphold the dignity and rights of all people including as they age or experience cognitive change.

Supported Decision-Making in New South Wales 2026

References

  1. United Nations General Assembly (2006), Convention on the Rights of Persons with Disabilities.
  2. Ramachandran, Maillika (2014), ‘Older Persons and the International Human Rights Framework: Argument for a Specific Convention’, Journal of the Indian Law Institute, Vol. 56, No. 4, pp. 523-549.
  3. Great Britain. England. High Court of Justice, Family Division. Re C (Adult: Refusal of Treatment). Wkly Law Rep. 1993 Oct 14;[1994] Feb 25:290-6. PMID: 12041270.
  4. Thompson, James R; Bradley, Valery J; Buntinx, Wil HE; Shalock, Robert L; Shogren, Karrie A; Snell, Martha E; Wehmeyer, Michael L; Borthwick - Duffy, Sharon; Coulter, David L; Craig, Ellis, Pat M; Gomez, Sharon C; Lachapelle, Yves; Luckasson, Ruth A; Reeve, Alya; Spreat, Scott; Tasse, Marc J; Verdugo, Miguql A; Yeager, Mark H (2009), ‘Conceptualizing supports and the support needs of people with intellectual disability’, Intellectual and Developmental Disabilities, Vol. 47, No. 2, pp. 135-146.
  5. Browning, Michelle; Bigby, Christine; & Douglas, Jacinta (2020), ‘A process of decision-making support: Exploring supported decision-making practice in Canada’, Journal of Intellectual and Developmental Disability, Vol. 46, Is. 2, pp.138-149.
  6. United Nations General Assembly (2006).
  7. Pogach, Dari (2020), ‘Supported Decision-Making for Older Adults with Age-Related Cognitive Decline’, Generations: Journal of the American Society on Aging, Vol. 43, No. 4, pp. 87-93.
  8. Burns, Jonathan Kenneth (2009), ‘Mental Health and Inequity: A Human Rights Approach to Inequity, Discrimination and Mental Disability’, Health and Human Rights, Vol. 11, No. 2, pp. 19-31.
  9. Then, Shih-Ning; & Bigby, Christine (2024), ‘Supported decision-making and the Disability Royal Commission’, Research and Practice in Intellectual and Developmental Disabilities, Vol. 11, pp. 86-106.
  10. Ibid.
  11. United Nations General Assembly (2006).
  12. Guardianship Act 1987 (NSW)
  13. Powers of Attorney Act 2003 (NSW)
  14. Guardianship Act 1987 (NSW)
  15. Powers of Attorney Act 2003 (NSW)
  16. Whitlach, Carol J; & Menne, Heather L (2009), ‘Don’t forget about me! Decision making by people with dementia’, Generations: Journal of the American Society on Aging, Vol. 33, No. 1, pp. 66-73.
  17. Tunny, Richard J; & Ziegler, Fenja V (2015), ‘Toward a psychology of surrogate decision making’, Perspectives on Psychological Science, Vol. 10, No. 6, pp. 880-885.

Supported Decision-Making in New South Wales 2026

  1. Funk, Michelle; & Bold, Natalie Drew (2020), ‘WHO’s QualityRights Initiative’, Health and Human Rights, Vol. 22, No. 1, pp. 69-76.
  2. Carr, Sarah (2011), ‘Enabling risk and ensuring safety: self directed support and personal budgets’, The Journal of Adult Protection, Vol. 13, No. 3, pp. 122-136.
  3. Ibid.
  4. Burns (2009)
  5. United Nations General Assembly (2006).
  6. Ramachandran (2014)
  7. Aged Care Act 2024 (Cth).