NDIA Accountability Project

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

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Submission No 9

SUPPORTED DECISION-MAKING IN NSW

Organisation: Seniors Rights Service

Date Received: 12 March 2026

Seniors Rights Service submission to The Committee on Ageing and Disability inquiry into supported decision making for

adults with disability and older people in NSW.

About Seniors Rights Service

For 40 years Seniors Rights Service has given voice through advocacy, informed through education and advised through legal service. Seniors Rights Service is an accredited specialist Community Legal Centre that provides assistance to older people in NSW. Our legal service provides free legal advice, casework assistance, information, referral and community legal education. In NSW Seniors Rights Service delivers the National Aged Care Advocacy Program providing information and support to people using or seeking to access in home and residential aged care services including specialist financial advocacy that helps to understand fees, costs and pricing, resolve concerns relating to costs and support consumer choice. As the largest Ageing Peak Body in NSW we work closely with the Department of Communities and Justice and other key NSW bodies and departments to further the NSW Government’s Ageing Well in NSW: Senior Strategy 2021 -2031 with a specific role under the Ageing Well action plan under focus area 4: Being resilient and informed.

Our Vision

A society that respects and upholds the rights of older people.

Our Purpose

The purpose of Seniors Rights Service is to raise awareness and empower older people to activate, uphold, extend and defend their individual rights. We foster communities to respect and value seniors and their rights. We achieve our purpose by providing accessible and confidential legal services, aged care advocacy and information.

Your rights. Your voice.

12 March 2026

Committee on Ageing and Disability Parliament of New South Wales 6 Macquarie Street Sydney, NSW, 2000

Dear Parliamentary Committee on Ageing and Disability Members,

Seniors Rights Service welcomes the invitation to provide a submission into supported decision making for adults with disability and older people in NSW, self-referred by the Committee on Ageing and Disability on 25 November 2025. Through our work in community and with older people and their supports we engage with supported decision making frameworks in various settings and witness its various applications and understanding daily. Our submission aims to provide an insight into our unique position as a community organisation at the intersection of advocacy and legal advice on ageing matters as well as a systemic advocacy for the rights and protections of older people in New South Wales, Australia and globally. Our submission opens with a clear explainer on what we mean by supporter decision making, overview of the current approaches to supporter decision making in New South Wales and Australia, reality of supported decision making in New South Wales as we see it through our services and our insight into what is required to implement quality and human rights centred formal and informal supported decision making approaches and supports in New South Wales.

Supported Decision Making

To be clear and ensure consistency of understanding, when we speak of a supported decision making approach we are referring to the following essential components and understandings:

  • A person retains their decision making ability formally and informally and are supported and aided to make and communicate their decisions
  • Capacity to make decisions is not binary and depends on a variety of factors to inform the nature and complexity of the decision required
  • Making any life decision usually involves advice and insights from those we trust, supported decision making reflects that everyday reality of people

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  • Autonomy and making our own decisions is a human right and is reflected in key United Nations conventions, the most relevant being the UN Convention of the Rights of People with Disability (CRPD)
  • Capacity is not static, it can change
  • Supports to enable decisions by a person must be centred on the will and preference of that person and not on what is perceived as their objective best interest
  • People are allowed to have dignity of risk in making decisions for themselves

Seniors Rights Service’s understanding of supported decision making is derived from our organisational purpose and values which are steeped in a human rights based approaches as well as our continuous commitment to listening to older people and expanding our knowledge and understanding. Our history is one of defending and protecting the rights of older people in all their diversity and intersections and we approach all frameworks, practice and advocacy from a person centred, older person and research informed position.

Supported Decision Making Application and Safeguards

In NSW supported decision making has no legal standing. Current legislation and regulation in the area is designed around a substitute decision making approach through the Guardianship Act 1987. A substitute decision making approach allows a legally authorised person to make personal, medical and lifestyle decisions for an adult who lacks the capacity to do so, typically acting on the “substituted judgment” principle aiming to ensure the person whom the decisions are being made for must be considered. By relying on good moral principles, an understanding of the person they are appointed to substitute decisions for and the notion that they must consider them, can and does result in a series of conflicting and potentially harmful and damaging decisions being made for a person. Whether intended or otherwise substitute decision making can often result and be seen as an impingement of the person’s rights and autonomy for whom a decision is being made.

In the twenty five years since the implementation of the Guardianship Act 1987 massive developments in law, policy and practice across States and Territories of Australia and overseas has occurred. These developments were in part driven by International Human Rights treaties and associated optional protocols which Australia is party to. Thinking has shifted in this period of time and the understanding of rights and practice in localised legislation and application has progressed.

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A primary example of this shift is in the New South Wales Law Reform Commission being asked in December 2015 to ’review and report on the desirability of changes to the Guardianship Act 1987 (NSW)”. This review undertook extensive consultation, which Seniors Rights Service participated in, with review and research over a 2.5 year period. A background paper and six question papers were produced along with the final report which was submitted to the Attorney General in August 2018. The finding of the report was clear and best summed up in the Chairperson’s forward “Similarly, the Public Guardian and the NSW Trustee and Guardian have done exemplary work serving the people of NSW in this area. But the Act has long passed its use by date.”¹. The report recommended a significant update to current legislation to modernise guardianship laws for New South Wales. A key feature of this was a shift to a supported decision making approach overturning the current model of substitute decision making. Since the report was submitted no substantive actions or plans to reform the Guardianship Act 1987 has occurred and the NSW Government only initially indicating it is carefully considering recommendations in the report with no further steps being taken to date.

With no progress occurring to update and modernise the Guardianship Act 1987 as recommended and needed there is effectively no localised legislation enabling a formal supported decision making approach in New South Wales. In the absence of this formal legislation, supported decision making is still a significant feature of National Disability Insurance Scheme (NDIS) Act 2013 (Cth) and the Aged Care Act 2024 (Cth) providing some formal and informal safeguards through these national laws. However, without formal safeguards in New South Wales legislation and systematic approaches, it could be argued supported decision making protections, approaches and safeguards are not deeply embedded and are often dependant on professional and service oversight which can be inconsistent and lack standardisation. Additionally a deficit in formal legal recognition and the elevation and promotion of supported decision making knowledge, understanding and approaches that comes with this recognition means there is inconsistency across key New South Wales government departments and agencies as well as public awareness and understanding of what supported decision making looks like and what good practice should be expected. The result of which is a patchy application and accountability standards of any approaches embedded in commonwealth legislation.

¹ Report 145 Review of the Guardianship Act 1987, Chairperson’s foreword, xiv

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Since the New South Wales Law Reform Commission’s review of the Guardianship Act 1987 there has been additional feedback and advice given to New South Wales government calling for updates to supported decision making in New South Wales. In response to the Disability Royal Commission recommendations a Guardianship Working Group was established by NSW Department of Communities of Justice in 2024 which Seniors Rights Service was part of. The working group purpose was to comment and provide insight on the recommendations to the Attorney General with the aim of informing the whole-of-government response to the Disability Royal Commission. Many recommendations in the working groups report overlap with New South Wales Law Reform Commission report and to date no action has been taken on any recommendations by the New South Wales Government.

Supported Decision Making for Older People in New South Wales

Community Insights

Centring the voices and experiences of older people should be an important aspect of this inquiry into supported decision making for adults with disability and older people in NSW. Seniors Rights Service calls on the Committee on Ageing and Disability to ensure submissions from older people and people with disability are central to any findings and recommendations first and foremost.

To inform our submission, Seniors Rights Service developed a short survey to gather insights asking community, “How can we improve supported decision making in NSW”. The survey ran for ten weeks starting in December 2025 and closing February 2026. The survey was promoted on our and sector partner channels to promote the inquiry and share insights. Responses to the survey where not extensive however valuable insights were gathered. These included the following in summary:

  • Listening to the actual experiences and insight from older people and people with disability
  • Reaching a common understanding from all parties is essential in trying to centre a person’s decision, this can help avoid conflict and mistrust moving forward
  • Accessible communication methods and means is essential to support decision making
  • Translation support is invaluable

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  • Independent legal and advocacy information and support is critical and should be provided free of charge
  • Cultural sensitivity and awareness is essential and must be the heart of the person centred approach including the design and application of systems and services

Seniors Rights Service Programs Insights

Seniors Rights Service provides free, confidential and independent information and advocacy to older people and their representatives on the complexities of the aged care system through the National Aged Care Advocacy Program. As an accredited specialist community legal centre we provide free legal advice, assistance and legal education to older people across the state. Our services empower older people to understand their rights, enabling informed choice, confident decision making and self-advocacy. Seniors Rights Service is an informal supported decision making resource available to older people across NSW. Through this work we witness the breach of decision making rights of older people regularly and work with older people to recentre their decisions. This breach of rights is visible in the lack of accessible information, practice of workers in the ageing sector, by the policy, risk management and accountability design of aged care organisations and services and by supporters of older people themselves who conflate their own opinions and risk preservation onto the older persons situation. The following case studies provide an insight into the daily challenges faced by older people and how with a supported decision making and human rights based approach better outcomes and satisfaction can be achieved.

Case Example 1:

Prior to admission, a client had been living with his son who has a disability. The son had been assisting with the client’s care, though this arrangement was no longer sustainable and the client’s daughter was appointed Guardian. The hospital’s Placement Officer was pressuring the clients Guardian to accept a placement in a Residential Aged Care Home two hours away and given the clients circumstances and situation in their home his daughter was considering taking this offer without considering the wills and preference of her father. The client felt at a loss as this decision was unsuitable for them and would cause them isolation and stress in the long run, they did not want to be separated from their family and community. The client was supported by Seniors Rights Service to understand their rights in this situation and the various escalation pathways and options

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available. As a result the client felt supported to express their wishes to their Guardian who then in turn felt more comfortable and informed to decline the initial placement and request alternative options locally to facilitate their fathers will and preference.

Case example 1 is a prime example of system design prioritising the vacation of hospital beds above the patients’ needs and preference, hospital staff’s professional conduct does not centre the older persons rights and their main priority appears to be freeing up hospital space, this is also demonstrated by the fact alternative pathways and information were not provided if the offer was declined. The recently appointed Guardian was also not fulfilling their role effectively to ensuring the will and preference of the person appointed for was at the heart of decisions being made for them. In this instance Seniors Rights Service provided key information and support to the older person on their rights and the Guardian on their duties so the older persons decision could be realised .

Case Example 2:

A resident of an aged care home raised concerns about not being able to leave the facility independently. They explained previous attempts to leave with another resident had been stopped and expressed confusion about the reasons provided by staff. They acknowledged the home’s duty of care given their mobility issues but felt they knew what they were doing and were managing any risks to themselves. The resident contacted Seniors Rights Service requesting information on their rights and advocacy support to clarify their options to gain community access as this was something they wanted to occur. Our aged care advocated contacted management and explained the clients right under the Aged Care Act and their duty to support their decisions. Following this, further meetings occurred with the resident to clarify the matter and arrangements were made to enable the resident to freely decide when to leave the facility and what supports were on offer to enable this by the residential aged care home.

Case example 2 is prime example of a breach of supported decision making principles by the aged care facility and staff exerting an ageist approach to asserting their rights. Older people have a right to decide for themselves, have access to community and take risks with dignity. The actions by the facility and staff were not person or solution focused and sought to simple detain the older person while providing no real information or support to seek access to community and fulfil their rights

Your rights. Your voice.

and wishes. Only through the support of our aged care advocates was a solution reached despite the resident’s best efforts to reach an understanding and solution. This demonstrates the important of informal supports in ensuring decision making rights are not breached but in ensuring the aged care sector’s policy and practice is reviewed and updated to align to supported decision making principles.

These case examples give a clear outline of what issues can occur when decision making rights such as making your own decision, provision of person centred services and accessible information are not prioritised. It also showcases how services and supports such as ours can play an important role in supporting older people to assert their rights and push practice to centre the older persons decision whether it be through better communication and clarification, open dialogue or access to an appropriate service.

Case Example 3:

A client living in a residential aged care home was becoming increasingly frustrated that their power of attorney refused to provide updates on their financial position. Specifically, the power of attorney removed the clients access to all bank accounts, when asked, refused to provide an itemised account of what had been paid for from the clients’ accounts and refused to provide the client any money to spend. The client acknowledged that they were in cognitive decline and no longer able to fully manage their financial affairs, particularly in relation to complex financial decisions and remembering when and how to pay bills. The client however was still able to clearly articulate their desire for more information about their financial position, copies of bank statements, a record of payments made from their bank accounts and a weekly amount of $20 to spend on items of their choosing (mainly newspapers and other items from the newsagency). These requests were made consistently without prompting both verbally and in writing to the power of attorney who would either change the subject, advise the client that they did not need to provide this information or ignored the request for information all together. With the assistance of Seniors Rights Service, the client was able to obtain information on their finances as well as a small amount of spending money per week.

Case example 3 is not an isolated occurrence. Powers of attorney have a fiduciary duty to the principal that includes providing information on decisions made on behalf of the principal, often

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overlook this duty when principals do not have full decision making capacity. Rather than openly engage with a principal in a way that they can understand, seeking input and guidance so that decisions are made in accordance with the principals will and preference, many power of attorneys intentionally withhold financial information from principals and remove them from all financial decision making . Such action stems from ageism and bias for people who are in cognitive decline and result in unnecessary NSW Civil and Administrative (NCAT) applications to resolve the issues.

Case Example 4:

A client was admitted to hospital due to a fall following consumption of alcohol. The client has a complex medical history including Parkinson’s disease and chronic alcohol misuse. While in hospital, NCAT made orders temporarily appointing the client’s daughter as her financial manager and guardian. Through this appointment, the daughter required the client to move into a residential aged care home and sold the clients home to prevent her from returning home and living independently. Following a period of alcohol abstinence (agreed to by the client) the clients cognitive decision making improved however she no longer had a home to return to.

Case example 4 demonstrates the overly protective and restrictive decisions that a guardian is permitted to make under the Guardianship Act 1987 which do not consider the clients dignity of risk. All people, including those in cognitive decline have the right to live their life as they choose, with their actions being restricted as little as possible, including the ability (as far as possible) to live a normal life in the community. For this client these rights were not protected by her daughter. The client’s daughter, although well meaning, removed all consideration of the clients actual will and preference, making decisions that removed all risk as far as was possible.

Case Example 5:

A client living independently in her own home was being pressured by her enduring guardian to move into a residential aged care home due to a diagnosis of Alzheimer’s disease. The clients treating medical team confirmed that the client’s Alzheimer’s disease was progressing and that the client was in cognitive decline, however the client still had capacity. Despite this, the enduring guardian made threats to apply to NCAT for guardianship orders if the client did not agree to move into a residential aged care home. Seniors Rights Service assisted with educating the enduring

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guardian on their obligations, in particular when her duties as enduring guardian commenced as well as the general principles contained in section 4 of the Guardianship Act 1987.

Case example 5 represents a clear lack of understanding within the community on the role of an enduring guardian and the important distinction between cognitive decline and the lack of capacity. In the long overdue move from substituted to supported decision making , community education will need to be expanded so that there is a clear understanding of what supported decision making is and the importance of considering and acting upon a persons will and preference. Such education will correct community misunderstanding that a person without capacity can make no decisions for themselves and enable a person to be supported to make decisions (where possible) or at a minimum, contribute to decisions to the greatest extent possible.

Seniors Rights Service Recommendations

The questions the Committee on Ageing and Disability is asking regarding what is important for supported decision making to be done right in New South Wales is a critical one. As demonstrated above there are significant gaps in legislative protections and system application and experience.

Seniors Rights Service recommends the following to ensure human rights are upheld and adequate safeguards are in place concerning supported decision making in New South Wales. These include:

  • Requirement for formal mechanisms to be in place to underpin and enable supported decision making. First and foremost this needs to occur within legal frameworks. Seniors Rights Service recommends swift action occurs to implement the recommendations outlined in NSW Law Reform Commission’s report 145 and advice provided by DCJ’s Guardianship Working Group. Concrete action here is required in order to provide proper safeguards and commence a whole of New South Wales government shift.
  • Funding to support the shift from a substitute approach to a supported decision making model is critical. Without appropriate and adequate funding to plan, develop and lead the shift in formal and informal settings relevant change will not occur meaning limited impact
  • Systems, sector tools and approaches must be designed through a human rights lens that centres the person without prejudice of age, ability or diagnosis. This can be achieved through a co-creative and consultative approach from the onset with older people and

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people with disabilities as well as organisations representing them. These approaches must be embedded into plans with sufficient timelines enabling transformative engagement

  • Public awareness campaigns highlighting key concepts that are a detriment to supported decision making. These should focus on Ageism, Ableism, Dignity of Risk or Risk Enablement and Rights however not be limited to only these, through consultation more key concepts may be identified from those with lived experience. Awareness campaigns are critical to shift focus and approach and will have the most impact on everyday life for those accessing support and for those providing it.
  • Providing effective decision making support requires knowledge of rights and the skills to apply them in practice in the roles and responsibilities of workers and the policy and support provided by organisations and agencies. For supported decision making to be done right it is critical that training and resources be made available to those working directly and indirectly with service supports in the ageing and disability sectors as well as NSW government departments and agencies that interface such as Health, Police and Housing.
  • Compulsory training for relevant NSW government departments and agencies as well as the ageing and disability sector on supported decision making changes and key concepts. It is critical that training is undertaken to provide support to implement formal and informal approaches of supported decision making in order for the practice to be embedded and the experience to transform. NSW Government can expand existing mechanisms with these sectors and make training compulsory within its own workforce to enforce accountability and drive change
  • Increased support to community support services that aid understanding of rights and facilitate accountability through advocacy at a client and systemic level. Specialist community organisations like ours continue to drive change across the ageing and disability sectors. We provide essential support to community members but also produce invaluable insights, data and research enabling and measuring the real impact of formal changes.
  • Central to affective supported decision making is access to information and support to help make independent decision is for oneself. To achieve this information must be accessible meaning plain language, in a language you are comfortable understanding and provided in a timely manner which allows a person to make an informed decision.

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Ageing and Disability Commission

The Ageing and Disability Commission could play a role in enhancing supported decision making in NSW as they have a unique position that provides them with access and links to NSW government departments and agencies at all levels . This access could be utilised to expand the role of the Commission to:

  • Systemically advocate and inform government departments and agencies about what supported decision making is, why its essential and what it looks like in practice specific to their work
  • Audit government practice in terms of supported decision making and advise and inform improvement plans and strategies — This is critical if substitute decision making is to become an alternative approach that is employed in appropriate and limited circumstances
  • Provide oversight and report on the progress of NSW government to adapt supported decision making frameworks to their focus areas of work and service
  • Raise community awareness about supported decision making and impacts of ageism and ableism
  • Coordinate and fund grass root initiatives by community organisations such as Seniors Rights Service to provide education on supported decision making to older people in need of support, decision makers and organisations interacting with supported decision makers

While the Commission can have a substantive role to ensure supported decision making is embedded and practiced across NSW Government, we believe any action in this area should be undertaken in consultation with and through co-creation with the community sector to ensure real accountability and that the voices of experience are driving change for maximum impact for older people and people with disability. Any possible changes to the functions of the Commission to enhance supported decision making must follow this or a similar approach. The expansion of the Commissions role must be viewed seriously and the commission must be given real power to drive change within government. By partnering with community organisations both can in tangent shift NSW from an outdated substitute approach to a supported decision making approach one. In addition any changes to role and function of the Commission to lead this work is not the whole answer to ensure that substitute decision making is an alternative approach that is used only in

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appropriate and limited circumstances it must be multifaceted approach which the Commission is one way to change the experiences and access to rights of older people and people with disability in NSW.

Conclusion

Central to this inquiry is the question, “how to ensure that substitute decision making is an alternative approach that is used only in appropriate and limited circumstances.” Seniors Rights Service recommends the following to ensure substitute decision making is an alternative approach that is used only in appropriate and limited circumstances:

  • Action recommendations in the New South Wales Law Reform Commission Report 145 to transform the Guardianship Act 1987
  • Develop an action plan for NSW Government to receive training on
    • Supported decision making principles
    • Rights covered in the NDIS and Aged Care Acts
    • Education on ageism and ableism
  • Aged Care and NDIS sector governing practice must include and demonstrate
    • Positive duty to imbed supported decision making practice
    • Requirement to inform and upskills staff on supported decision making, rights, ageism and ableism
    • Provide clients with accessible and all information through various media forms as well as access to appropriate support services
  • Raise public awareness on support decision making and resource grass roots community organisations to provide training to supporters to limit breaches

This inquiry will likely reveal what many already know and is well documented through other substantive reviews that NSW needs to shift formally and informally to enable supported decision making in NSW legislation, policy, practice and approach. To continue to undertake no action in this space and only acknowledge valued recommendations for change is to deny NSW residents human rights and limit the fulfilment of any rights afforded at commonwealth level.

Your rights. Your voice.