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Guardians And Nominees NDIS Information: Genie Guides

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What is a nominee under the National Disability Insurance Scheme?

People with disabilities are presumed to have capacity to make decisions that affect their own lives. 

However, the National Disability Insurance Scheme Act 2013 (NDIS Act) recognises that there may be circumstances where it is necessary for a person to be appointed as a nominee of a participant to act on behalf of, or make decisions on behalf of a participant.  It is important to remember that this is a last resort measure.

Appointments of nominees will be justified only when it is not possible for participants to be assisted to make decisions for themselves. Appointments of nominees usually come about as a result of a participant requesting that a nominee be appointed. 

It is only in rare and exceptional cases that the NDIA will find it necessary to appoint a nominee for a participant who has not requested it. The NDIA will have regard to the participant’s wishes and the participant’s circumstances. The NDIS Act (section 80) and Nominee Rules (Part 5) set out the duties of nominees to ensure that participants have every opportunity to participate in the decision-making process for their plans.

Guardianship Information

Guardianship is different from nominees. Guardianship is the authority to manage the legal and non-legal affairs of a person such as power of attorney or Centrelink nominations. Guardians are not nominees under the NDIS and there is no automatic process for guardians to be made nominees. Where it has been identified by the NDIA that the participant requires a nominee and there is a guardianship arrangement in place, the presumption is that the guardian will be appointed as the nominee.

Guardians being appointed as nominees.

As part of the appointment process for nominees the NDIA will have regard to whether the participant has a guardian, and will take the views of the guardian into consideration. There is a presumption that a guardian should be appointed nominee where their responsibilities are comparable to the duties of a nominee.


NDIS participants under 18

For a participant under 18 years of age child representatives instead of nominees can be appointed. A child representative is only appointed when the NDIA determines that the person or persons with parental responsibility should not be the child representative. 
Plan nominee definition

A person can be a plan nominee with or without being a payment nominee. 

A plan nominee is appointed to undertake specific duties for the participant.

The plan nominee would take on the participants role of making decisions about:

  • engaging providers
  • attend planning meetings and include the participant in conversations and decisions that affect them 
  • ensure the plan is implemented and working effectively for the participant
  • where required, be an advocate for the participant
A plan nominee does not have the power to discuss financial matters with providers or the Agency.

A participant can have several plan nominees who may work collaboratively to the benefit of the participant but there can only be one payment nominee.


Payment nominee definition

A payment nominee can also be the plan nominee or they can remain seperate.

  • Only one payment nominee is appointed to manage the funded supports on behalf of the participant. This can include self-management of a plan.
  • A payment nominee does not have the power to make decisions about the participants plan or providers. Their function is financial management only.
Should a plan nominee also be the payment nominee, they have the power to act on behalf of the participant in all aspects of the participant’s plan and financial matters.


Correspondence Nominee and their role

In contrast, the role of a correspondence nominee is significantly narrower. Although a correspondence nominee is able to do a range of acts on behalf of a participant under the NDIS, they are not able to do any of the acts by a plan nominee. The acts that a correspondence nominee is able to do include making requests to the NDIA (for example, requests for information), and receiving notices from the NDIA, on behalf of the participant.

How appointment of nominee comes about

A plan nominee or a correspondence nominee may be appointed:

  1. at the request of the participant; or
  2. on the initiative of the CEO of the NDIA.

Appointment at request of participant

If the participant has requested that a nominee be appointed, the NDIA's principle is that a nominee should ordinarily be appointed if the participant requests one.

If the participant has requested that a particular person be appointed as nominee, the NDIA must regard the following principles:

  1. The person the participant has requested should ordinarily be appointed;
  2. any evidence that indicates that the person might have unduly or improperly induced or influenced the participant to request the appointment; and any conflicts of interest requires investigation.
Appointment without a request from the participant

If the participant has not requested that a nominee be appointed, the NDIA, when deciding whether to appoint a nominee needs to take into account a number of considerations as well as consult with the participant. 

An example of a circumstance in which a nominee might be appointed without a request from the participant is where the NDIA considers that the participant needs a nominee, but is unable to request appointment themselves even with support. In this scenario, the initiative might come from a carer or family member.
Duties of child representatives

A child's representative has a duty under the NDIS Act to:

  • ascertain the wishes of the child; and
  • act in the best interests of the child 
This duty is not breached if the child's representative does something, or refrains from doing something, so long as:

  • the child's representative reasonably believes they have ascertained the wishes of the child 
  • the child's representative reasonably believes that the doing of the thing, or not doing of the thing is in the best interests of the child 
A child's representative has a duty to consult wherever practicable with the following people:

  • the guardian of the child and any other person with parental responsibility 
  • any other person who assists the child to manage their day-to-day activities and make decisions

Determining who has parental responsibility for a child

Generally, a child will be represented for the purposes of the NDIS by the person or persons who have parental responsibility for the child (section 74(1)(a)).

However, this will not be the case where the NDIA decides:

  • that it is not appropriate for the person or persons with parental responsibility to represent the child and appoints another person (see determining whether a person other than a person with parental responsibility should be a child's representative);
  • or decides that a child can represent themselves.

Children who do not have a guardian

When there is no guardian appointed for a child, the person who will normally be the child's representative will be:

  • the child's parent (provided the child's parent has not ceased to have parental responsibility for the child because of a court order or under a State or Territory law) 
  • the person identified in a parenting order (within the meaning of the Family Law Act 1975):
    1. that the child is to live with 
    2. that the child is to spend time with 
    3. who is responsible for the child's long term or day-to-day care, welfare and development 
Where more than one person has parental responsibility for a child

In some circumstances, more than one person has parental responsibility for a child. For example, where a child's parents have separated both parents may continue to have parental responsibility for the child.

Where this occurs, those persons will generally have joint parental responsibility and will together be the child's representative for the purposes of the NDIS Act.

However, the NDIA may decide that one or more of those persons is to have exclusive parental responsibility for the child. 

When deciding whether it is appropriate for one or more persons with parental responsibility to be the child's representative exclusively, the NDIA must have regard to:

  • the preferences of the child
  • the views of any person who has parental responsibility for the child
  • whether one or more of those persons are best placed to carry out the duties to children taking into account:
    1. existing arrangements that are in place between those persons and the child 
    2. which persons have responsibility for day-to-day parenting decisions 
    3. which persons can act in conjunction with other representatives and supporters of the child in the best interests of the child
  • whether one or more of those persons are willing and able to work together in the best interests of the child
  • the desirability of preserving family relationships and informal support networks of the child 
  • Any questions or any information in relation that could determine including requesting consent to the suitability to work with children:
    1. any answers or information that have been provided by the person;
    2. any refusal by the person to provide answers or information;
    3. any relevant conviction for an offence under Commonwealth, State or Territory law
    4. any relevant information relating to the suitability of the person to work with children
The NDIA must notify each person directly affected by the decision in writing, including a statement that the person may request that the NDIA review the decision; known as a reviewable decision.

The NDIA will also attempt to contact all people directly affected by the decision by telephone to advise them of the decision which has been made.


Children who have a guardian

If a child has a guardian, the guardian normally has parental responsibility for the child, and will therefore normally be the child's representative.

The NDIA is able to decide that one or more other persons with parental responsibility be the child's representative instead of the child's guardian.

When deciding whether one or more persons with parental responsibility should be the child's representative instead of the child's guardian, the NDIA must:

  • consult, in writing, with the child's guardian
  • have regard to the following:
    1. the preferences of the child
    2. the principle that the child's guardian should be the child's representative unless the NDIA is satisfied that this is not appropriate
    3. whether the child's guardian recommends that another person should be the child's representative 
    4. the extent to which the child's guardian is willing and able to perform the duties to children 
    5. whether a child's parent/s or a person with a parenting order is more willing and able to carry out the duties to children
Note, where the child's guardian is a State or Territory Minister, or the head of a Department of State, that person must agree in writing to the NDIA deciding that another person with parental responsibility is to be the child's representative.

The NDIA must notify each person directly affected by the decision in writing, including a statement to the effect that the persons may request that the NDIA review the decision; this is known as a reviewable decision 

The NDIA will also attempt to contact all people directly affected by the decision by telephone to advise them of the decision which has been made.
Determining whether a child can represent themselves

Ordinarily, a participant who is a child will have a child representative to perform actions and make decisions on his or her behalf. 

However, the NDIA may decide that a child can represent themselves for the purposes of the NDIS Act if it is satisfied that:

  • the child is capable of making decisions for themselves
  • it is appropriate for the child to do things under the NDIS Act for themselves 
When deciding whether a child is capable of making decisions for themselves, the NDIA must:

  • consult with the child and the child's representative 
  • have regard to the following:
    1. whether the child:
      • is able to understand the kind of information relevant to decisions that need to be made under the NDIS;
      • is able to use information of that kind when making decisions;
      • is able to understand the consequences of decisions that need to be made under the NDIS; and
      • is able to communicate decisions in some way 
    2. whether there are people in the child's life who can support them to make their own decisions 
  • have regard to the following:
    1. the preferences of the child;
    2. whether there are other people in the child's life who would be willing and able to assist them in carrying out actions and making decisions under the NDIS;
    3. the need to preserve existing family relationships;
    4. any existing arrangements in place under Commonwealth, State and Territory schemes
The NDIA must notify a child in writing of the decision not to allow them to represent themselves, including a statement to the effect that the child may request that the NDIA review the decision; this is known as a reviewable decision 

The NDIA will also attempt to contact the child by telephone to advise them of the decision which has been made.

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