What a supporter may do

Section 27 sets out the actions, and every one is bounded by the same phrase: a supporter may act only in line with the individual's will and preferences. Within that, they may request, access or receive information or documents, and communicate information, including the will, preferences and decisions of the individual.

The third limb is where the line is drawn. The rules may prescribe other things a supporter can do, but only a thing, other than making a decision on behalf of the individual, prescribed by the rules. Deciding is carved out at the point the power is granted.

Who can decide for you, and it is not a supporter

Section 28 is blunt about it. A person must not do any thing on behalf of an individual that may or must be done by the individual under the Act, unless they fall into a defined group: someone with guardianship under Commonwealth, state or territory law, someone appointed by a court or tribunal with power to make decisions, someone who holds an enduring power of attorney or like power granted by the individual, or a class prescribed by the rules.

So the Act separates two things that families routinely blur. Substituting your judgement for someone else's requires a formal legal instrument. Helping them exercise their own requires only that they say so.

The information follows automatically

This is the practical part, and it removes the most common friction in dealing with any system. Under section 29, anything the Act requires to be given to the individual must also be given to their supporter, if the individual has consented to that. Where the supporter is a guardian or attorney under section 28, it must be given regardless of consent. The supporter may then use that information only for the purposes of the Act.

No repeated requests, no explaining the relationship each time, no privacy stalemate. The consent is given once and the documents follow.

The duty that makes this different

Section 30 sets out what a supporter owes. Some of it is standard: the duty to act honestly, diligently and in good faith in discharging the supporter's other duties, and the duty to avoid or manage any conflict of interest in relation to the supporter and the individual, telling the System Governor when one arises.

Then subsection (2) does something you rarely see written into legislation. When acting under section 27, a supporter must act in a manner that promotes the will, preferences and personal, cultural and social wellbeing of the individual, act honestly and in good faith, and support the individual only to the extent necessary for the individual to do the thing, applying the supporter's best endeavours to maintain the ability of the individual to make the individual's own decisions.

Read that last duty again. A supporter is obliged to do as little as will work, and to actively preserve the other person's capacity to decide. The well-meaning relative who takes over because it is faster is not being helpful under this Act. They are in breach of a stated duty.

The protections, both ways

Division 2 insulates each party from the other. Under section 34 the individual does not commit an offence, and is not liable to a civil penalty, under this Act in relation to any act or omission of another person acting as their supporter. Under section 35 the supporter is likewise not liable for the individual's acts, nor for anything done, in good faith, by the supporter in their capacity as a supporter of the individual.

Good faith is the condition, and section 36 shows what happens without it. The Offence for abuse of position as supporter catches a supporter who uses their influence, their conduct or information they obtained in the role, intending to dishonestly obtain a benefit or cause a detriment. Penalty: 60 penalty units. It also catches former supporters who misuse information they gained while in the role, which closes the obvious gap.

Our view

Labelled as opinion, on the sections above. This is the best-drafted part of the Act we have read, and the least known. Supported decision-making has been argued for since the Royal Commission, and here it is with actions, duties, protections, an offence and a registration process attached. It gives an older person a way to get help without signing away the right to decide, which is the choice many families think they face and do not.

The gap is entirely in communication. Nothing in the aged care entry process is built around the word "supporter", and a family that has never heard it will default to the two options they know. The duty in section 30(2)(c), to support only as much as necessary, is the sentence we would put on the form.

What this page does not tell you

It describes the Act's framework and is not legal advice. It does not set out the registration process in detail, which is in Division 3 and involves a decision by the System Governor, and it does not cover what the rules add, since the rules can prescribe further actions and duties. Nothing here tells you whether a supporter or a formal appointment is right for a particular person, and Part 5 of Chapter 4 is carved out of the supporter power by the Act itself. The Act is quoted at the compilation stated in the dateline.