Guardianship and decision-making support

Public hearing 30 was held 21–25 November 2022 at Sydney Olympic Park in Sydney NSW.

This hearing examined Australian guardianship and administration laws and policies with a particular focus on how substituted decision-making impacts on the rights of people with disability. It also looked at supported decision-making models and why they aren’t more widely used in Australia.

• For plain language definitions of guardianship, administration and substitute vs supported decision-making, see our legal capacity and guardianship jargon buster.
• Find out more on the human rights of people with disability and the Disability Royal Commission public hearing about enacting them at our human rights issues page.

You can read our live commentary about this hearing in these Twitter threads:

Monday, Tuesday, Wednesday, Thursday, Friday

Where we stand on guardianship and decision-making

Some people with disability need support to make decisions. We have a right to get that support instead of having decisions imposed on us or made for us (known as substituted or substitute decision-making).

People with Disability Australia (PWDA) believes that models of supported decision-making must replace substituted decision-making models for people with disability wherever possible.

By signing the United Nations Convention on the Rights of Persons with Disabilities (UN CRPD), Australia has promised to uphold our right to equal recognition before the law (Article 12). Article 12 says the government must provide access to decision-making support, yet many people with disability don’t even know this is an option they can use.

Article 12 also says that when someone else makes decisions for us, the government needs to make sure they respect our rights and preferences, have no conflict of interest, and stop as soon as possible. The reality in Australia is very different.

PWDA advocates have helped many people with disability resist substitute decision-making. Some of their stories are told anonymously in our submission to the Disability Royal Commission.

You can also read about what it’s like to be under financial management in this community member guest blog.

To fully uphold the human rights of people with disability and comply with the UN CRPD, Australia must:

• urgently address the many systemic failings of current substitute decision-making frameworks
• commit to replacing them as soon as possible with a national supported decision-making framework focused on our human rights
• establish a co-designed and co-delivered inquiry to decide how Australia will develop and implement that supported decision-making framework

Read all our recommendations in our submission to the Disability Royal Commission, or check out our position statement for a summary. You can find them both at our website.

Find out more

From the Disability Royal Commission:

• Report on the key elements of the legislative framework affecting people with disability
• Supported decision-making and guardianship – proposals for reform roundtable (with Easy Read)

From other disability organisations:

• Inclusion Australia’s Supported Decision Making explainer and resources
• Advocacy for Inclusion’s Supported Decision Making Podcast on the Principles of Guardianship
• Australasian Society for Intellectual Disability’s podcast episode about Supported Decision Making
• Council for Intellectual Disability’s position statements on supported decision making and guardianship law reform

Research:

• University of New South Wales guidelines for supported decision-making
• The La Trobe Support for Decision Making Practice Framework Learning Resource
• Open Society video on Looking Differently at Disability and Decision Making
• Australian Law Reform Commission 2013 issues paper on Equality, Capacity and Disability in Commonwealth Laws (with Easy Read)

In the media:

• Crikey’s investigative series about guardianship: Kidnapped by the State
• An explainer from Sydney Uni News: #FreeBritney: do we have conservatorships in Australia?
• 4 Corners investigation from ABC News
• Also from ABC News: Australians living under state control are testifying at the Disability Royal Commission. But gag laws mean you won’t see their faces