(NSW) Make Guardianship a Last Resort for People with Disability

Brentyn Ramm, Connor O'Halloran, Johanna Eyleen Soysal & Inge Hogan
Jul 12
8 min read

Updated: 7 days ago

Author: Brentyn Ramm, Connor O'Halloran, Johanna Eyleen Soysal & Inge Hogan | Publish date: 12/7/2026

P: In NSW, the NSW Civil and Administrative Tribunal (NCAT) is not required to use substitute decision-making as a last resort and in the least restrictive manner in guardianship law.
S: Amend Section 14 of the Guardianship Act 1987 (NSW) to ensure substitute decision-making only occurs as a last resort and in the least restrictive manner in guardianship law.
E: Disability Royal Commission (DRC): ‘Supported decision-making should be embedded in guardianship … law and practice to ensure substitute decision-making only happens as a last resort and in the least restrictive manner.’

Problem Identification:

Section 14 of the Guardianship Act 1987 (NSW) (the Act) states that NCAT may appoint a guardian where it is satisfied that a person is 'in need of a guardian'. Section 14(2) states that NCAT 'shall have regard to' the practicability of alternatives to guardianship (Section 14(d)(2)). However, the Act does not require NCAT to consider supported decision-making alternatives before making an order.

According to the DRC, these provisions mean that 'people with disability often have decisions made for them, even when they may not want these decisions made or agree with them.' The DRC stated that this may leave them exposed to 'violence, abuse, neglect and exploitation.'

Context:

The Convention on the Rights of Persons with Disabilities (CRPD) refers to supported decision-making as giving primacy to 'a person's will and preferences'. It also defines substitute decision-making as the removal of 'legal capacity', where decisions are based on the person's ‘objective "best interests"' rather than their 'own will and preferences.'

The NSW Government refers to a guardian as a person who ‘can make healthcare, lifestyle and medical decisions on behalf of a person who lacks decision-making capacity.’ The DRC outlined that guardians are appointed when a person is deemed to lack ‘capacity’ and a substitute decision-maker is needed to act on their behalf. Typically, a friend or family member will be appointed as a Private Guardian. However, NCAT has stated that ‘if there is no one else suitable or prepared to be guardian’, the NSW Public Guardian may be appointed.

According to the Australian Guardianship and Administration Council, there were 3,227 NSW guardianship orders in 2024–25.

Arguments:

The Council for Intellectual Disability (CID) stated that ‘every day [guardianship orders] take away the rights of people with disability to make important decisions for themselves – such as where they live, what medical care they get, and what they can do with their own money.’ The CRPD observed a ‘general failure to understand that the human rights-based model of disability implies a shift from the substitute decision-making paradigm to one that is based on supported decision-making.’ The DRC noted the story of Reyna, who had a mild intellectual disability, who stated ‘their lives were destroyed when, without their knowledge or consent, the public trustee took control of [her partner’s] health decisions and financial affairs.’ People with Disability Australia (PWDA) stated that their ‘individual advocates report experiencing many situations where Public Guardians … do not follow a person with disability’s will and preferences.’

The DRC stated that ‘people with disability under guardianship and administration may experience violence, abuse, neglect and exploitation.’ In a review of the literature on substituted decision-making, the DRC concluded that the dependence of people with disabilities ‘places [them] at greater risk of experiencing violence, abuse, neglect and exploitation, particularly if their caregivers are also the perpetrators’. The DRC was told that Killara, a First Nations woman, was placed in a residential facility without family consultation under a guardianship and administration order. Her son Anthony observed ‘massive signs of neglect’ such as untreated hepatitis C, diabetes, and dental and eyesight problems, and reported that Killara stated, ‘I'm scared. I hate it here’ on every visit. The Queensland Aged and Disability Advocacy Service noted that ‘lack of understanding [of their role] results in unchallenged authority exercised over the person by the [substitute decision maker], resulting in an abusive or exploitative relationship.’

Advice/Solution Identification:

The DRC has called for supported decision-making to ‘be embedded in guardianship and administration law and practice to ensure [it] only happens as a last resort and in the least restrictive manner.’ The CID said that 'supported decision making … [would open] the door to a person's autonomy, rights and freedom to make decisions [and] control their life'.

Precedent:

There is domestic and international precedent for embedding supported decision-making principles within guardianship legislation. In the ACT, when determining whether to make a guardianship order, the ACT Civil and Administrative Tribunal must consider whether supported decision-making alternatives would be sufficient. Internationally, in the USA, Minnesota requires that supported decision-making be meaningfully considered and attempted before a guardianship application is made, with evidence of those attempts provided to the court.

Public Support:

Broad Support

Women with Disabilities Australia - Have called for guardianship and financial management to be abolished as key strategies for realising human rights and preventing violence against women with disability. However, they have not explicitly called for supported decision-making to be embedded in guardianship law and practice to ensure substitute decision-making only happens as a last resort and in the least restrictive manner.

This list reflects publicly stated positions and should not necessarily be taken as endorsement of this specific brief.

News Coverage:

Non-Profit Quarterly - “Why Guardianship Reform Is a Civil Rights Imperative”. This article argued that guardianship fails the most vulnerable, and that a crucial component of reform is supported decision-making with guardianship as a last resort. By: James A. Lomastro | 16 June 2025 - Read the article here.
ABC News - “Placed under public guardianship, Margaret wants to take back control of her life”. This article presented the case of Margaret and her placement under public guardianship, which involved substituted decision-making about where she lived and how her money was spent. By: Jessica Longbottom | 4 January 2025 - Read the article here.
The Maine Monitor - “The decision that can last a lifetime”. This article reported how supported decision-making is seen as a less restrictive alternative to guardianship for adults with disabilities, though it may not be suitable for all people with disability. By: Samantha Hogan | 30 July 2023 - Read the article here.
Sydney Criminal Lawyers - “The NSW Public Trustee Is Liberally Selling Off Managed Persons Assets, Says APTAGIE”. This article raised the proposal of supported decision-making in parliament and suggested the establishment of a national framework for implementation across all states and territories. By: Paul Gregorie | 6 June 2023 - Read the article here.
La Trobe University - “Upholding the rights of people with disabilities”. This article outlined a report commissioned by the DRC that recommended supported decision-making to be implemented across all sectors that interact with people with disabilities, with an emphasis on those who have a profound disability. No Author Listed | 24 January 2023 - Read the article here.
New Hampshire Bulletin - “New law clears the way for ‘supported decision-making’ agreements”. This article outlined a new law in the U.S. state of New Hampshire that recognised supported decision-making, with an opinion on what this law may provide people with disability. By: Annmarie Timmins | 20 August 2021 - Read the article here.

Where to go to learn more:

(2023) Final Report - Volume 6, Enabling autonomy and access | Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability - The Disability Royal Commission examined how governments and organisations can better enable autonomy for people with disability. They recommended that supported decision-making be embedded in guardianship law so that substitute decision-making occurs only as a last resort. View the report here.
(2022) Submission to the Disability Royal Commission on guardianship and substituted decision-making | Inclusion Australia - This submission outlined Inclusion Australia’s support for better decision-making for people with disability, where substitute decision-making rulings should be ‘specific and only applied where needed’. It provided case studies of the challenges faced by people with disability related to the guardianship system and substitute decision-making. Read the submission here.
(2022) Submission to the Disability Royal Commission’s Public Hearing 30 on guardianship, substituted and supported decision-making | People With Disability Australia - This submission outlined how current guardianship systems continue to rely on substitute decision-making rather than supported decision-making, often limiting the autonomy and rights of people with disability. It argued that guardianship should be reduced and replaced with supported decision-making frameworks that prioritise the person’s will and preferences. Read the submission here.
(2014) Committee on the Rights of Persons with Disabilities | United Nations - The Committee affirmed that people with disability have the right to legal recognition and should be supported to make their own decisions. The Committee emphasised that substitute decision-making regimes should be replaced with supported decision-making frameworks that respect the person’s rights, will and preferences. Read the comment here.
(2016) Guardianship Hearings | NSW Civil and Administrative Tribunal - This fact sheet outlined the procedure of a guardianship hearing, including the questions NCAT considers, who the parties are, and what decisions NCAT can make. It also provided information on legal representation and the types of guardians that may be appointed. Read the fact sheet here.
Guardianship Act 1987 (NSW) - Read the Act here.

Human Perspective:

Content Warning: Ableism

Daniel is 37 and lives in regional NSW. Following a workplace accident several years ago, he acquired a brain injury that affects his memory, communication, and ability to process complex information quickly. With support from his sister and a local disability advocate, he managed most aspects of his life independently, including paying bills, attending medical appointments, and deciding where he wanted to live. After a short hospital admission during a mental health crisis, his treatment team applied to NCAT for a guardianship order. During the hearing, limited attention was given to the supports already assisting his decision-making. Despite his sister’s ongoing involvement, a Public Guardian was appointed. Within months, Daniel was moved into supported accommodation far from his community, despite repeatedly expressing a wish to remain at home. Staff began directing questions to his guardian rather than Daniel, leaving him increasingly excluded from decisions. He felt anxious and powerless over major aspects of his life.

To protect the anonymity of those involved, this is a fictionalised account drawn from an amalgamation of real-life stories, experiences and testimonials gathered during the research process for this brief. Any resemblance to actual individuals is purely coincidental.

Conflict of interest/acknowledgment statement:

N/A.

Support

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Disclaimers

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Reference list:

Australian Guardianship and Administration Council. (2023). Australian adult guardianship orders 2022/23. https://www.agac.org.au/assets/documents/Adult-Guardianship-Orders/AGAC-Guardianship-orders-Report-2022-2023.pdf

Australian Guardianship and Administration Council. (2025). Australian adult guardianship orders 2024/25. https://www.agac.org.au/assets/images/AGAC-Guardianship_orders_Report-2024-2025.pdf

Committee on the Rights of Persons with Disabilities. (2014). General comment no. 1 (2014), Article 12: Equal recognition before the law. United Nations. https://docs.un.org/en/CRPD/C/GC/1

Council for Intellectual Disability. (2019, August 16). Whose life is this anyway? Including people with disability in their guardianship hearings. https://cid.org.au/our-stories/whose-life-is-this-anyway-including-people-with-disability-in-their-guardianship-hearings/

Council for Intellectual Disability. (2023, November 16). Supported decision making and guardianship – Disability Royal Commission final report. https://cid.org.au/our-stories/sdm-guardianship/

Guardianship and Management of Property Act 1991 (ACT). https://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/act/consol_act/gamopa1991379/s8.html

Inclusion Australia. (2022). Submission to the Disability Royal Commission on guardianship and substituted decision-making. https://www.inclusionaustralia.org.au/wp-content/uploads/2023/02/Inclusion-Australia-DRC-submission-on-guardianship-and-SDM-Final-Dec-2022.pdf

Koh, J., Kembhvai-Tam, G., Rose, V., Featherston, R., & Shlonsky, A. (2021). Rapid evidence review: Violence, abuse, neglect and exploitation of people with disability. Centre for Evidence and Implementation, & Monash University. https://disability.royalcommission.gov.au/system/files/2023-05/Research%20Report%20-%20Rapid%20Evidence%20Review%20-%20Violence%2C%20abuse%2C%20neglect%20and%20exploitation%20of%20people%20with%20disability.pdf

Mental Health Coordinating Council. (2020, March 25). Chapter 5 section B: Guardianship. https://mhrm.mhcc.org.au/chapters/5-substitute-decision-making-and-capacity/5b-guardianship/

Minnesota Judicial Branch. (n.d.). Before guardianship - Guardianship. https://mncourts.gov/help-topics/guardianship/before-guardianship

New South Wales Civil and Administrative Tribunal. (2016). Guardianship hearings [Fact sheet]. https://ncat.nsw.gov.au/documents/factsheets/gd_factsheet_guardianship_hearings.pdf

People with Disability Australia. (2022). Our lives, our decisions: Submission to the Disability Royal Commission’s Public Hearing 30 on guardianship, substituted and supported decision making. https://pwd.org.au/wp-content/uploads/2022/11/PWDA_SUB_DRC-Gaurdianship_17112022_FINAL.pdf

Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability. (2023). Final report - Volume 1: Voices of people with disability. Commonwealth of Australia. https://disability.royalcommission.gov.au/system/files/2023-09/Final%20Report%20-%20Volume%201%2C%20Voices%20of%20people%20with%20disability%20-%20Book%201_0.pdf

Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability. (2023). Final report – Volume 6: Enabling autonomy and access. Commonwealth of Australia. https://disability.royalcommission.gov.au/system/files/2023-09/Final%20Report%20-%20Volume%206%2C%20Enabling%20autonomy%20and%20access.pdf

Senate Community Affairs References Committee. (2015). Violence, abuse and neglect against people with disability in institutional and residential settings, including the gender and age related dimensions, and the particular situation of Aboriginal and Torres Strait Islander people with disability, and culturally and linguistically diverse people with disability. Commonwealth of Australia. https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Community_Affairs/Violence_abuse_neglect/~/media/Committees/clac_ctte/Violence_abuse_neglect/report.pdf