4.46       The Commonwealth decision-making model recommended by the ALRC promotes formal supported decision-making. At the core of supported decision-making is the idea that all persons, except in very limited circumstances, have some level of decision-making ability and that, with appropriate support, they can be supported to make a decision. The nature and level of the support may vary but the decision remains that of the person who requires the decision-making support.

4.47       A supporter under the model is an individual or organisation appointed by a person to enable them to make a decision. Ultimate decision-making power and responsibility remains with the person who requires decision-making support. Supporters should be entitled to support people to make any decision relevant to the area of Commonwealth responsibility in relation to which they have been appointed, including financial decisions.

4.48       A person may appoint whomever they want as their supporter and may appoint more than one. For example, a person may appoint a family member, friend or carer. A supporter may perform a range of functions, including in relation to information, advice or communication. The ALRC does not consider that there should be a requirement that a supporter be unpaid.[38] For example, there may be circumstances in which a paid carer may be appointed as a supporter, particularly where the person does not have family support or is socially isolated.[39] Advocacy organisations, which may not be directly paid by the person, but receive funding from government or other sources, may in certain instances be appropriately appointed as a supporter.[40] A person may also appoint, or revoke their appointment of, a supporter at any time.

4.49       There is currently no provision in Commonwealth legislation for a supporter or supporter-type role, which reflects the ideals of supported decision-making. The mechanisms closest to the role of a supporter are Centrelink correspondence nominees[41] and nominated representatives in relation to eHealth.[42] However, as outlined below, these roles differ significantly from that of a supporter, particularly with respect to the duties owed to the person who needs decision-making support.[43]

What about informal supporters?

4.50       Informal supporters and support networks play a vital role in decision-making of persons with disability. Support under art 12 of the CRPD ‘encompasses both informal and formal support arrangements, of varying types and intensity’.[44] As the VLRC stated:

supported decision making recognises the interdependent nature of most people’s lives. Most people make important decisions with personal support (such as advice from family, friends or mentors), or sometimes with professional support (for example, doctors or accountants).[45]

4.51       A number of stakeholders emphasised the important role informal supporters play in decision-making and that entitlement to support should include informal support.[46] The Multicultural Disability Advocacy Association of NSW highlighted the effect of culture on decision-making and noted ‘the differences in ways decisions are made in various cultures’:

in some cultures decisions are made by individuals, whereas in others, all important decisions may be made by the head of the family, or collectively by the local elders, or in consultation with other significant members of the family or community concerned.[47]

4.52       Consistent with these observations, some stakeholders have expressed concerns about the potential for over-formalising existing support mechanisms and support networks that assist people with disability to make decisions.[48] In the ALRC’s view, the recognition of supporters should not diminish the involvement of, or respect for, informal support, including in relation to decision-making.

4.53       A number of the elements of the Commonwealth decision-making model recognise the valuable role played by informal supporters. For example, the ALRC recommends that formal supporters have an obligation to support a person to consult family members, carers and other significant people in their life in the process of making decisions. A similar duty applies to representatives. There are also specific mechanisms in some areas of Commonwealth law considered in following chapters.

4.54       Importantly, however, some informal arrangements are ‘in fact more restrictive … because decisions [are] made informally on a substitute basis by others’.[49] The formalisation of such arrangements and associated safeguards may ensure people are able to exercise choice and control over decision-making in their lives.

Recognition of supporters

Recommendation 4–3               Relevant Commonwealth laws and legal frameworks should include the concept of a supporter and reflect the National Decision-Making Principles in providing that:

(a)           a person who requires decision-making support should be able to choose to be assisted by a supporter, and to cease being supported at any time;

(b)           where a supporter is chosen, ultimate decision-making authority remains with the person who requires decision-making support; and

(c)           supported decisions should be recognised as the decisions of the person who required decision-making support.

4.55       To introduce the concept of formal supported decision-making at a Commonwealth level, the ALRC recommends that relevant laws and legal frameworks should include the concept of a supporter and establish supporter arrangements. These laws and legal frameworks should reflect the National Decision-Making Principles and include a number of key elements relating to the recognition of supporters.

4.56       The most important element is recognition that, where a supporter is chosen, ultimate decision-making authority remains with the person who requires decision-making support, and that supported decisions must be recognised as the decision of the person who required that support.[50] These elements are intended to encourage support to be provided where this is needed to enable a person to make or convey a decision. This in turn maximises the autonomy of the person, and allows for dignity of risk.

4.57       The other element of the recommendation relates to ensuring that a person is able to exercise choice and control over their supporter or supporters. This is not provided for under any existing Commonwealth decision-making regimes.[51]

4.58       The ACT Disability, Aged and Carer Advocacy Service (ADACAS) submitted that the provision of a signed document should be a sufficient basis for a Commonwealth agency to recognise a supporter. Any other approach, it said, ‘reinforces the old fashioned view that people with disabilities lack capacity’. Further, ‘specific recognition of supporters should only be required by the Commonwealth where they need a level of access that would otherwise be prevented by law’—including for privacy reasons, receipt of monies or ‘where the supporter conveys … decisions purportedly made by the person being supported’.[52]

4.59       The OPA (SA and Vic) observed that further consideration will be required as to the status of supporter arrangements, and information about where any ‘appointment instruments’ are to be lodged.[53]

4.60       Any new legislative scheme for recognising supporters is likely to have limited practical impact if people do not have access to an appropriate supporter. Under the CRPD, Commonwealth, state and territory governments have an obligation to provide support to persons with disability to assist them in decision-making.[54] There seems no reason why individual advocates or advocate organisations should not be recognised as supporters. Only the person supported would have the authority to choose a supporter, and would also have the power to suspend or revoke the arrangement at any time.

4.61       The OPA (SA and Vic) suggested that further consideration be given to the possible role of government, including Australian Government departments and state and territory offices of the public advocate and public guardians, in providing supporters. Another possibility is the development of organisations specialised in providing advice and support, such as the Nidus Personal Planning Resource Centre in British Columbia, Canada.[55]

Functions and duties

Functions of a supporter

Recommendation 4–4               A supporter assists a person who requires support to make decisions and may:

(a)      obtain and disclose personal and other information on behalf of the person, and assist the person to understand information;

(b)     provide advice to the person about the decisions they might make;

(c)      assist the person to communicate the decisions; and

(d)     endeavour to ensure the decisions of the person are given effect.

4.62       A supporter may perform a number of functions for a person who requires decision-making support. The ALRC recommends that relevant Commonwealth laws and legal frameworks should provide that supporters may exercise some or all of the functions outlined in Recommendation 4–4.

4.63       For example, a supporter may need to obtain relevant information and explain it to the person they are supporting in a way that is easily understood, or provide advice to the person about the decisions the person might make. This role in the collection and explanation of information is provided for under a number of existing and proposed models of supported decision-making.[56]

4.64       It is important that supporters are able to handle relevant personal information of the person they are supporting. Stakeholders highlighted the difficulties that family members and carers often face in attempting to obtain access to information. The operation of the Privacy Act 1998 (Cth) and the recognition of supporters under that Act is discussed in Chapter 6.

4.65       In circumstances where a person who may require decision-making support experiences difficulty communicating, the supporter may either assist them to communicate a decision, or in some circumstances may communicate the person’s decision to third parties. Where a supporter is purportedly communicating a person’s decision, it may be necessary for the relevant Commonwealth department or agency to include additional safeguards to ensure that there is no abuse of the supporter’s function or duties. This communication-related role is currently provided for under a number of decision-making models.[57]

4.66       A supporter may also play a role in endeavouring to ensure that the decision of the person is given effect. They may, for example, contact the relevant Commonwealth department or agency to follow up on the information provided, or the decision, or provide assistance for the person to seek review of a decision. However, it would be a matter for individual supporters to determine the extent to which they are able to play this role, depending on the circumstances of the person who requires decision-making support and the particular decision. This role is also provided under some current decision-making regimes overseas, including in the United Kingdom and Yukon, Canada.[58]

Supporter duties

Recommendation 4–5               Relevant Commonwealth laws and legal frameworks should provide that supporters of persons who require decision-making support must:

(a)      support the person to make decisions;

(b)     support the person to express their will and preferences in making decisions;

(c)      act in a manner promoting the personal, social, financial, and cultural wellbeing of the person;

(d)     act honestly, diligently and in good faith;

(e)      support the person to consult, as they wish, with existing appointees, family members, carers and other significant people in their life in making decisions; and

(f)      assist the person to develop their own decision-making ability.

For the purposes of paragraph (e), ‘existing appointee’ should be defined to include existing Commonwealth supporters and representatives and a person or organisation who, under Commonwealth, state or territory law, has guardianship of the person, or is a person formally appointed to make decisions for the person.

4.67       The duties of supporters should be set out in the legislation relevant to the area of Commonwealth law. In response to the Discussion Paper, stakeholders broadly supported this statement of duties.[59]

4.68       The first duty should be to act only within the scope of their appointment. This does not preclude supporters acting informally, or a person appointing a supporter in relation to a wider range of decisions than initially envisaged.

4.69       Supporters should be required to act in a manner that promotes the personal, social, financial, and cultural wellbeing of the person who requires decision-making support. This duty is similar to the duty imposed on nominees under the NDIS Act to act in a manner that promotes personal and social wellbeing,[60] but adds elements relating to financial and cultural wellbeing.

4.70       Given the potential role of supporters in supporting people to make decisions which relate to finances, reference to financial wellbeing seems important. In addition, the importance of cultural wellbeing and sensitivity was highlighted by a number of stakeholders.[61] However, National Disability Services (NDS) noted that it is ‘unclear exactly how cultural wellbeing will be promoted in relation to decision-making; this will require thoughtful evaluation as there are some risks of conflict between cultural considerations and individual rights’.[62] The OPA (SA and Vic) submitted that ‘financial’ and ‘cultural’ wellbeing need not be listed separately, as these aspects of wellbeing can be considered encompassed by the term ‘personal and social wellbeing’.[63]

4.71       In addition, there should be a duty to facilitate consultation. A number of stakeholders highlighted the importance of ensuring supporters (and representatives) consult family members, carers and other significant people in the life of the person who may require decision-making support.[64] However, the duty should be to facilitate consultation only as desired by the person requiring decision-making support.[65]

4.72       In order to facilitate the appropriate interaction of supporters with existing state and territory appointed decision-makers, a supporter should also have a duty to facilitate consultation with existing appointees. The recommended definition of ‘existing appointee’ is similar to the one in the NDIS Act.[66] A duty to facilitate consultation with existing appointees may help address concerns about ‘access to critical and relevant information’ by state or territory appointed decision-makers.[67]

4.73       Finally, supporters should also have an obligation to develop the capacity of the person being supported to make their own decisions. This would mirror an obligation imposed on nominees under the National Disability Insurance Scheme (Nominee) Rules 2013 (Cth) (the Nominee Rules).[68] The nature and content of the obligation will vary according to the circumstances of the appointment. For example, the identity of the supporter will affect their ability to develop the person’s capacity, as will resource constraints.

4.74       NDS observed that assisting the person to develop their own decision-making ability, while important, is potentially a complex task. This complexity, and the skills required to discharge this duty, must be considered ‘when applying the model to different areas of law’. Moreover, it is also likely to have training and funding implications.[69] Dr Fleur Beaupert, Dr Piers Gooding and Linda Steele submitted that this duty should be expressed as being ‘to assist the person requiring support to exercise his or her legal capacity with less support in the future if he or she so wishes’.[70]

4.75       Pave the Way considered the duty to be ‘too onerous’ and expressed the view that, according to the CRPD, the state (rather than the supporter or representative) is obliged to provide resources that aim to develop people’s decision-making ability.[71]

4.76       ADACAS suggested that, for the purpose of examining supporters’ duties and safeguards, it is necessary to distinguish carefully between the different categories of supporters—for example, support by family and friends, introduced volunteers, paid care workers, independent advocates and professional decision supporters.[72]

4.77       In a similar vein, NACLC stated that the ALRC should give further thought as to how ‘professional supporters’ (such as social workers or lawyers) might operate in practice, and in relation to the ‘interaction of any duties owed by a supporter under the relevant piece of Commonwealth legislation and any other duties or obligations they owe (such as under professional conduct rules and regulations, or other relevant legislation) and the potential for conflict of interest’.[73] It also observed that some duties, such as the duty to develop the capacity of the person with disability, extend beyond the role played by a community legal centre lawyer.[74]

4.78       The ALRC considers that basic duties of the type recommended should be applicable to supporters of any kind. The exact nature and content of these duties is likely to require further articulation in specific areas of Commonwealth law, dependent on the context. It is implicit that supporters should only have to perform these duties to the extent reasonable in the circumstances and as desired by the person being supported.

4.79       While supporters should have a high level of responsibility, there may be concerns about the unintended consequences of statutory duties—and, in particular, people being deterred from acting as supporters.[75]

4.80       A notable issue is whether supporters should have any personal liability for decisions made by the person being supported. The VLRC commented that determining the extent to which supporters should be liable in such circumstances is ‘challenging’.[76] It can be argued ‘that the supported person should be responsible for the consequences of any decisions made within a supported arrangement because they retain decision-making authority’.[77] However, the VLRC concluded that the law should ‘recognise that the support relationship is one of special trust and confidence, and the supported person is likely to be in a position of vulnerability relative to their supporter’:

Therefore, to avoid doubt, the law should designate the relationship between a supporter and the supported person as fiduciary. Supporters who fail to comply with their fiduciary obligations will leave themselves open to the full range of equitable remedies that are available in these circumstances.[78]

4.81       In the Discussion Paper, the ALRC asked whether the relationship of supporter to the person who requires support should be regarded as a fiduciary one.[79] Stakeholders had mixed views on this issue.

4.82       The Law Institute of Victoria (LIV) expressed concern that the ‘imposition of fiduciary duties might discourage people from accepting the role of supporter, especially if the duty results in supporters needing to take out insurance’.[80] As this might frustrate the objective of encouraging recognition of supported decision-making, the LIV argued that a lesser duty should be imposed on supporters than applies to substitute decision-makers.[81]

4.83       Other stakeholders agreed that supporters should not be subject to fiduciary duties.[82] NDS, for example, argued that such duties are unnecessary—first, because the role of a supporter can be revoked by the person being supported; and secondly, because, where supporters are in paid positions, this provides scope to hold them to account through a contractual relationship (for example, a supporter could be held liable if they are paid to manage correspondence, and negligence in this task results in financial disadvantage for the client).[83]

4.84       In contrast, the OPA (SA and Vic) submitted that it was appropriate to impose fiduciary duties on supporters, and this would be ‘unlikely to deter a well-intentioned, honest supporter’:

In considering this issue, there is a need to distinguish between lack of skill or diligence (negligence) and lack of honesty (breach of fiduciary duty). We suspect that supporters are more likely to be deterred by concerns about whether they are skilled enough or have enough time to perform the role, rather than concerns about such things as whether they might inadvertently benefit themselves or a related party.[84]

4.85       More generally, the ALRC acknowledges that the issue of the potential liability of supporters (and representatives) is a difficult one. There has been insufficient opportunity to fully canvass the issues involved and, therefore, it would be inappropriate to make any recommendation in this regard. It is also possible to argue that, given the many categories of supporters and representatives, and the widely varying contexts in which decision-making takes place, it may be best to leave consideration of this issue to those drafting Commonwealth laws in specific areas,[85] or to resolution by the courts.[86]


4.86       Article 12(4) of the CRPD requires that all measures relating to the exercise of legal capacity provide for appropriate and effective safeguards. The balance between ensuring supporters and decisions made under support arrangements are subject to appropriate safeguards, and avoiding over-regulation of supporters is a delicate one. Excessive regulation may

discourage honest people from accepting an appointment as a supporter. Too much regulation would also have a tendency to undermine the important relationship of trust between a supporter and a supported person.[87]

4.87       There needs to be a number of safeguards and recognition of the purpose of each safeguard. For example, some are designed to protect the person who may require decision-making support from abuse, neglect or exploitation; others may be required to ‘ensure that a decision made under a supported decision making arrangement truly expresses and effects the wishes of the person with disability’.[88]

4.88       The OPA (Vic) highlighted that supported decision-making opens up ‘the possibility of conflict, undue influence, abuse and exploitation’.[89] Similarly, Bruce Arnold and Dr Wendy Bonython submitted that

factors such as undue, or inappropriate, influence are not specific to decision-making by disabled people; nonetheless steps should be taken to ensure that their decision-making—particularly decision-making with serious consequences, such as extensive or potentially high risk medical treatment, or decisions about care—are not a consequence of inappropriate consideration of factors of this type.[90]

4.89       AGAC observed that supported decision-making schemes must ‘value-add’ to informal decision-making schemes by providing accountability structures and transparency. It stated that, like guardianship systems, supported decision-making systems must also have ‘clear systems for avoiding, so far as possible, the inclusion of supported decision makers who may use that position to abuse a person with a disability’.[91] In this context, AGAC stated that, sometimes, a ‘guardianship or administration order can be a tool to empower the person with the disability to exercise his or her own choice of support’ where supporters have not been acting in their interest.[92]

4.90       While it is difficult to protect people who may require decision-making support from abuse and neglect in all instances, there are potential safeguards against exploitation by supporters under the Commonwealth decision-making model. The key safeguards include:

  • the recommended duties of supporters;

  • the ability of the person who requires decision-making support to revoke the appointment at any time;

  • provision for the appointment of more than one supporter; and

  • guidance and training for people who require decision-making support, their supporters and Commonwealth departments and agencies interacting with them.

4.91       In the Discussion Paper, the ALRC asked what safeguards in relation to supporters should be incorporated into the Commonwealth decision-making model.[93] For example, in British Columbia, Canada, a monitor must be appointed to oversee the person providing support to safeguard against financial abuse, except in certain circumstances.[94] Suggestions made to the VLRC in its guardianship inquiry included: the registration of arrangements; police checks on appointments; and appointment of monitors.[95]

4.92       Stakeholders generally agreed with the importance of the key safeguards listed above, while noting the complexity of issues involved.[96] The OPA (SA and Vic) suggested that additional safeguards might involve a register of appointments and police checks being conducted in relation to appointments.

4.93       In view of the possibilities of undue influence, abuse and exploitation, safeguards appropriate to the scope of the appointment are essential.[97] The possible conflicts of interest in relation to paid supporters were identified as a particular concern:

Some of the current projects in the area of supported decision making are using disability workers in the support role and this needs to be evaluated. It is conceivable that the role could expand to this wider group if conflict of interest considerations were managed as part of supporter selection and training.[98]

4.94       The NSW Council for Intellectual Disability (NSWCID) agreed that excessive regulation may ‘unduly interfere with the relationship between the person and supporter’. However it stated that

there needs to be some process for informing supporters of their responsibilities and to seek intervention by a tribunal if a supporter is not fulfilling their responsibilities to a person who lacks decision making capacity—this may entail an application to have a representative appointed as occurs now with applications for guardianship.[99]

4.95       The Victorian Deaf Society highlighted the importance of ‘a paper trail that formalises and legalises the relationship’ and proper oversight, for example, by a case manager.[100] Advocacy for Inclusion suggested that an ‘independent body should be established to provide formal monitoring and safeguards for people with disabilities in supported and facilitated decision-making arrangements’.[101]

4.96       In relation to safeguards, it may be necessary to distinguish between support provided by family and friends and support provided by paid professionals. For example, as discussed in relation to the NDIS,[102] advocacy or other organisations providing professional support services may be subject to quality assurance and other accreditation standards that should not apply to ‘natural’ supporters, such as family or friends.