What are guardianship and oversight?
Guardianship refers to the ways in which vulnerable people are given extra support to navigate care, decisions, and advocacy.
Oversight refers to the ways in which accountability is upheld by organisations and systems or governments. It is a key component of multi-level rights-based care (RBC) interventions.
Reforms in these two areas refer to actions taken at a government level to change laws or regulations to improve accountability and support within a rights-based system.
Why does this matter for rights-based care?
The Aged Care Act 2024 introduced significant system-level reforms, including changes to guardianship and external oversight mechanisms. [1]
Guardianship
In terms of guardianship reform, key changes in the Act included a shift away from substitute or surrogate decision-making, towards supported decision-making. The Act recognises the presumption of capacity - or the default assumption that any older person is able to make their own decisions. [2] It also introduces the role of ‘registered supporter’ who can support an older person to make decisions, and increased accountability for those making decisions on behalf of others. [1, 2]
The Act makes a distinction between a supporter, who helps the older person make decisions, and a substitute decision-maker, who decides on behalf of the older person. Older people are presumed to have decision-making capacity. In some situations, a substitute decision-maker may be involved, such as when a person is assessed as lacking capacity or when restrictive practices are being considered. It is considered a last resort and is only used when a person is unable to make decisions, even with appropriate support. [3] Read more about capacity and decision-making and restrictive practices in the context of RBC.
Studies of guardianship polices have highlighted the potential negative effects of substitute or surrogate decision-making. They point out that decisions made on behalf of older people often do not sufficiently include the wishes of the person that is impacted. [4] Guardians may exercise decision-making power in a way that has more far-reaching effects that intended, resulting in a loss of agency for the older person. [5, 6]
Researchers call on governments to make sure that guardianship polices are aligned with human rights frameworks, such as RBC. [4, 7] Guardianship laws that are mostly focused on risk management conflict with frameworks that prioritise autonomy. [5]
Supported decision-making models are consistent with the values of RBC, as these models better uphold autonomy, dignity, and choice. [8] Substitute decision-making should only be used where a person is unable to make a particular decision even with support. [9]
External oversight
Australian aged care reforms also include changes to how the aged care system is held accountable. The Aged Care Quality and Safety Commission (ACQSC) oversees regulatory compliance across the aged care system and was granted expanded duties with the new legislation, including unannounced inspections, banning orders, and civil penalties. [2] An independent complaints commissioner was appointed to ensure independent and transparent handling of complaints. [2] The Aboriginal and Torres Strait Islander Aged Care Commissioner role was established, with the recommendation that it be a permanent role that ensures equitable, culturally safe access to aged care for Indigenous Australians. [10, 11]
New oversight bodies include the Inspector-General of Aged Care, an independent statutory agency that oversees how the system is funded, regulated, and administered. It is empowered to investigate systemic issues. [12]
The research describes external oversight of RBC through legislation, national standards, quality monitoring, complaints pathways, and commissions that investigate potential problems. [13-15] For example, an initiative to reduce physical restraint use included legislation, national quality indicators, and monitoring systems, ensuring that oversight took place at the highest levels of the care system. [14]
Studies describe gaps and inconsistencies in the ways oversight mechanisms uphold accountability across a system. [8, 13, 16] In US nursing homes, the lack of central tracking of violations has been linked to residents’ fear of retaliation when reporting grievances. [17] In the Netherlands, researchers found that low number of complaints might indicate problems with power structures or inaccessible complaints pathways. [16] Incomplete or inadequate system-level oversight can backfire, making it harder for older people to receive RBC.
Oversight mechanisms should be more closely aligned with human rights obligations, with human rights principles informing how a system measures its impact. [13, 18]
Want to learn more?
This report from OPAN aims to capture the views and experiences of people living with dementia, their supporters and professionals on supported decision-making in Australia.
This toolkit from OPAN is for older people and their supporters into individual rights related to decision-making and service options.
This review by the Office of the Inspector-General of Aged Care examines whether My Aged Care effectively upholds older people’s rights to dignity, fairness and equitable access, and identifies reforms needed to ensure the system’s entry point is genuinely accessible and rights-based.
What can be done?
Centre the older person in decision-making
Policy makers:
- Embed a clear hierarchy in legislation and policy that positions supported decision making as the preferred approach, with substitute decision making used only as a last resort.
- Provide guidance to support organisations and workers to implement supported decision-making frameworks.
Providers:
- Review organisational policies and practices that default to others making decisions on the older person’s behalf.
- Develop or refine organisational guidance that ensures decision making support is explored before substitute arrangements are relied upon.
Aged care workers:
- Actively involve older people in decisions impacting their lives.
The evidence:
- Over use of substitute decision making risks undermining autonomy and human rights. [9]
- Guardianship regimes often replace, rather than support, the person’s own decision‑making. [18]
Review risk-focused routines that can reduce decision-making autonomy
Policy makers:
- Monitor and limit conditions under which substitute decision making is authorised to reduce unnecessary reliance on guardianship.
Providers:
- Review practice patterns that may normalise substitute decision making, where decision-making support could be provided instead.
Aged care workers:
- Treat substitute decision making as exceptional rather than routine, consistent with the cautions articulated by these authors.
The evidence:
- Guardianship can result in extensive loss of legal agency. [5]
- Once appointed, guardians may exercise broad decision-making power. [6]
Implement oversight at multiple levels
Policy makers:
- Maintain layered oversight: legislation, quality indicators, inspections, complaints bodies, and independent commissioners.
Aged care providers and workers:
- Engage with oversight mechanisms as complementary rather than fragmented.
- Understand how different oversight tools (complaints, inspections, reporting) work together.
The evidence:
- Regulatory and monitoring approaches are most effective when used in combination. [14]