Aged and disability care law in New South Wales 

This article is a wayfinding guide. It states the law of New South Wales, and identifies where Commonwealth law governs instead. It adds no authority of its own: every proposition here is drawn from the linked articles on each New South Wales statute, and the pinpoints in this article's citations are the ones verified there.

New South Wales has the most institutionally distinctive arrangement in the country for this subject, because it has an office no other jurisdiction has: the Ageing and Disability Commissioner. Getting a New South Wales problem right usually means identifying, early, whether the Commissioner is the right destination.

Commonwealth or State?

The Commonwealth funds and regulates the service. Aged care services are funded by subsidy and regulated under the Aged Care Act 2024 (Cth); disability supports are funded and providers regulated under the National Disability Insurance Scheme Act 2013 (Cth).⁸⁷ Registration, quality standards, reportable incidents and the two Commonwealth regulators sit there, as does income support.

New South Wales governs the person's capacity, their protection and the complaint. Guardianship, enduring instruments, abuse and neglect of adults, service standards and complaints about providers are State questions.

The six statutes, and what each answers

| The question | The Act | The decision-maker | |---|---|---| | Can this adult decide, and who decides if not? | Guardianship Act 1987 (NSW) | NCAT | | Who deals with this person's property and money?⁴ | Powers of Attorney Act 2003 (NSW) | The attorney; the Supreme Court and NCAT on review | | This adult is being abused or neglected — who acts?⁶ | Ageing and Disability Commissioner Act 2019 (NSW) | The Ageing and Disability Commissioner | | Who hears a complaint about a service provider?¹ | Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) | The Ombudsman | | What does the State still owe people with disability?² | Disability Inclusion Act 2014 (NSW) | Public authorities; the Minister by regulation | | Does this unpaid carer have recognised standing?⁵ | Carers (Recognition) Act 2010 (NSW) | Human services agencies |

Capacity and substitute decision-making

The Guardianship Act 1987 (NSW) is old, and it shows in its language.³ It speaks of a person in need of a guardian (s 3), and s 4 makes the person's welfare and interests paramount — a protective formulation, not the will-and-preferences formulation used in Victoria and Tasmania. Do not import the newer language into a New South Wales answer; the statutory standard is different.

Two restraints on the Tribunal are worth knowing. Section 15(3) and (4) restrict when a plenary guardianship order may be made, and s 16(1) restricts the appointment of the Public Guardian. The general shape is that the Tribunal reaches for the narrower order and the private appointee first, and a submission for a plenary order or a public appointee has to overcome those provisions rather than assume them.

Enduring guardianship is dealt with in ss 6 and 6A, and the medical and dental treatment provisions in Part 5 — including ss 33A, 37 and 40 — govern who may consent to treatment for a person unable to consent for themselves.

The Powers of Attorney Act 2003 (NSW) covers property and financial authority. Its distinctive features are procedural and they decide cases. Section 19 requires the enduring instrument to be witnessed by a prescribed witness who certifies that they explained the effect of the instrument and that the principal appeared to understand it. Section 20 defers the attorney's authority until acceptance. Sections 11 to 13 restrict gifts and benefits unless the instrument expressly authorises them — the provision most often breached, usually by a family member acting with good intentions. Section 25 preserves a named beneficiary's interest against ademption where the attorney disposes of property that was the subject of a gift by will.

Abuse and neglect: the Commissioner

The Ageing and Disability Commissioner Act 2019 (NSW) has no counterpart in most jurisdictions, and its design decisions are the substance of a New South Wales answer.

Section 4 states objects and principles, and it does so without creating enforceable rights — s 4(4) and (5) are the provisions to cite when someone argues the objects give a client a claim.

Section 12 confers the Commissioner's functions, including investigating abuse, neglect and exploitation of adults with disability and older adults, and making protective applications. Section 13 allows any person to make a report — there is no closed class of reporters and no mandatory reporting duty for the general public. Section 15 protects a person who reports in good faith from liability, and protects their identity from disclosure.

So in New South Wales the safeguarding route is: any person may report; the Commissioner investigates; the Commissioner may bring protective applications. Compare South Australia, where the Adult Safeguarding Unit's response is consent-based, and note that the two models are not interchangeable.

Complaints about a service

The Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) routes complaints about service providers to the Ombudsman. Its standing rule is unusually open: s 23 sets standing by a genuine concern test rather than a closed list of who may complain, and s 23(4) bars a person who is unjustifiably interfering in the matter.

This is worth contrasting with the closed lists in South Australia (s 24 of the Health and Community Services Complaints Act 2004) and Western Australia (s 19 of the Health and Disability Services (Complaints) Act 1995). A person with a genuine concern who would not appear on a statutory list has standing in New South Wales.

What the State still owes

The Disability Inclusion Act 2014 (NSW) survived the transfer of disability services to the NDIS, and s 3 states the State's post-transition responsibilities expressly. Sections 12 and 20 impose disability inclusion action plan obligations on public authorities, and s 21 provides for service standards by regulation.

The point for a problem question is that the NDIS did not extinguish State obligations. A public authority in New South Wales has planning duties under this Act whatever the Commonwealth funds.

Carers

The Carers (Recognition) Act 2010 (NSW) defines a carer in s 5(1) by reference to ongoing care for four categories of need, and excludes paid, volunteer and training relationships, and mere family relationship, in s 5(2) and (3). Section 7(1) imposes the Charter obligation on human services agencies — expressed as awareness and understanding, a weaker formulation than Western Australia's requirement to comply.

Section 9(1) is the provision to remember: the Act creates no civil cause of action. As everywhere in Australia, carers recognition legislation binds organisations and gives carers nothing to sue on.

A working order for a New South Wales problem

1. Split the jurisdiction. Funding, registration, standards and reportable incidents are Commonwealth; capacity, protection and complaints are State.
2. Apply the New South Wales standard, not another State's. Section 4 makes welfare and interests paramount; do not answer with will and preferences.
3. Check the instrument's formalities. Section 19's witness certificate and s 20's acceptance requirement dispose of many powers of attorney before their substance is reached.
4. Before alleging a breach by an attorney, check ss 11 to 13 on gifts and benefits, and s 25 on ademption.
5. For abuse or neglect, go to the Ageing and Disability Commissioner under s 12, note that any person may report under s 13, and check s 15 protection before advising a reluctant reporter.
6. For a complaint about a provider, apply the genuine concern test in s 23 rather than looking for the complainant in a list.
7. *Do not assume the NDIS displaced the Disability Inclusion Act 2014.*

Self-check

• Have I used the Guardianship Act 1987 standard rather than importing a newer jurisdiction's language?
• Have I checked whether a plenary order or a Public Guardian appointment is restricted here?
• Have I tested the enduring power of attorney against s 19 and s 20 before its substance?
• Have I sent an abuse matter to the Commissioner rather than to a complaints body?
• Have I told the carer that the Charter gives them no cause of action, per s 9(1)?