Nominees Operational Guideline - Appointment of Nominees

5. Appointment of Nominees

5.1 Presumption of Capacity

Participants are presumed, so far as is reasonable in the circumstances, to have the capacity to determine their own best interests and make decisions that affect their own lives (section 17A(1)).

It will not be necessary to appoint a nominee where it is possible to support, and build the capacity of participants' to make their own decisions for the purposes of the NDIS Act.

However, the NDIS Act recognises that there may be circumstances where it is necessary for a person to be appointed as a nominee of a participant, and to act on behalf of, or make decisions on behalf of a participant.

Appointments of nominees will be justified only when it is not possible for participants to be assisted to make decisions for themselves (rules 3.1 to 3.3 of the Nominees Rules).

It is only in rare and exceptional circumstances that the NDIA will find it necessary to appoint a nominee for a participant who has not requested one.

5.2 General considerations for appointing a nominee

The NDIA is sensitive to the fact that the role of nominee can be very difficult and that the nominee's duties can be confronting, even for those people who already play a strong and critical role in the life of a participant. The NDIA will take care to explain the role and provide support to people who are considering taking on the role of nominee.

Most participants are likely to have informal arrangements to support them in making decisions or even to make those decisions on their behalf. It is possible that some people in the participant's support network may believe that a nominee is necessary even though all avenues for supporting the participant to make their own decisions have not been fully explored. The NDIA will be sensitive to these existing support networks and the important role they play while also recognising that the views of supporters alone are generally not sufficient to justify the appointment of a nominee.

The NDIA will consider the requirement for a nominee in collaboration with the participant. In some instances, the decision to appoint a nominee may be straightforward due to the participant having a pre-existing guardianship arrangement or a supportive carer who undertakes this role informally. Alternatively, the development of the participant's plan may be the primary trigger for consideration of the appointment of a nominee.

The NDIA is aware that a person's decision-making capacity might change over time or vary according to the environment in which the person makes their decisions. The NDIA will, wherever possible, make their assessment of whether a participant can be supported to make decisions in the environment in which the participant feels most comfortable and having given the participant ample time.

5.3 How do appointments of nominees come about?

A plan nominee or a correspondence nominee may be appointed by the NDIA:

  • at the request of a participant (sections 86(2)(a) and 87(2)(a)); or
  • on the initiative of the NDIA (sections 86(2)(b) and 87(2)(b)).

Appointments of nominees will most commonly come about as a result of a participant requesting a nominee be appointed.

It will only be in rare and exceptional circumstances that the NDIA will find it necessary to appoint a nominee for a participant who has not requested one. If appointing a nominee in such circumstances, the NDIA will have regard to the participant's wishes and the participant's circumstances, including their formal and informal support networks (rule 3.4 of the Nominees Rules).

An example of a circumstance in which a nominee might be appointed without a request from a participant is where the NDIA considers that the participant needs a nominee, but is unable to request one themselves, even with support. In such circumstances, the request might come from a carer or other person who offers to be the participant's nominee (rule 3.15 of the Nominees Rules).

5.4 How will the NDIA decide whether it is necessary to appoint a nominee?

If a participant has requested that a nominee be appointed, the NDIA is to have regard to the principle that a nominee should ordinarily be appointed if the participant requests one (rule 3.12 of the Nominees Rules).

However, if the NDIA is considering appointing a nominee and the participant has not requested the appointment, the NDIA must:

  • consult with the participant (rule 3.14(a) of the Nominees Rules); and
  • have regard to the following:
    1. whether the participant would be able to participate effectively in the NDIS without having a nominee appointed (rule 3.14 (b)(i) of the Nominees Rules);
    2. the principle that a nominee should be appointed only when necessary, as a last resort, and subject to appropriate safeguards (rule 3.14(b)(ii) of the Nominees Rules);
    3. whether the participant has a court-appointed decision-maker (external) (External website) or a participant-appointed decision-maker (external) (External website) (rule 3.14(b)(iii) of the Nominees Rules);
    4. whether the participant has supportive relationships, friendships or connections with others that could be:
      • relied on or strengthened to assist the participant to make their own decisions; or
      • improved by appointment of an appropriate person as a nominee (rule 3.14(b)(iv) of the Nominees Rules); and
    5. any relevant views of:

Where the NDIA is considering whether to appoint a nominee, the NDIA must consult, in writing, with any court-appointed decision-maker (external) (External website) or participant-appointed decision-maker (external) (External website) in relation to any appointment (rule 4.12 of the Nominees Rules).

5.5 How will the NDIA decide who should be appointed as nominee?

The NDIA is responsible for deciding who should be appointed as a nominee. There are several matters the NDIA must take into account when deciding whether to appoint a particular person as a nominee.

5.5.1 Persons that cannot be appointed as a nominee

The following persons must not be appointed as a nominee:

  • a person under the age of 18 years old;
  • the NDIA; or
  • any individual associated with the NDIA, other than in their personal capacity (rule 4.4 of the Nominees Rules). This means that anyone associated with the NDIA (such as an employee or registered provider of supports) cannot be appointed as a nominee in that capacity.

5.5.2 Matters to take into account when deciding who to appoint as nominee

There are several matters the NDIA is required to take into account when deciding whether to appoint a particular person as nominee. These matters are set out below.

The NDIA must:

  • take into consideration the wishes (if any) of the participant regarding the making of the appointment (rule 4.6(a) of the Nominees Rules); and
  • have regard to those wishes, however they are expressed. For example, a participant might express a wish in a non-verbal manner, or might express a wish to a third party, such as a disability support worker (rule 4.6(b) of the Nominees Rules).

Note, there are additional considerations which the NDIA must take into account when a participant has requested that a particular person be appointed as nominee.

The NDIA must also have regard to:

Note, if a participant does have a court-appointed decision-maker (External website) or a participant-appointed decision- maker (External website), the NDIA must have regard to the presumption that if the powers and responsibilities of that person are comparable with those of a nominee, that person should be appointed as nominee (rule 4.8(a) of the Nominees Rules).

For example, if the person's powers and responsibilities include making decisions on behalf of the participant, this may be comparable with the powers and responsibilities of a nominee.

Finally, the NDIA must also have regard to and consider the following further matters:

  • whether the person is willing and able to comply with the duties of nominees (section 88(3)) (rule 4.7 of the Nominees Rules);
  • the degree to which the person:
    1. knows, and is in a relationship of trust with, the participant;
    2. is willing and able to:
      • act in conjunction with other representatives and supporters of, and carers for, the participant to maximise the participant's wellbeing;
      • undertake the kinds of activities that a nominee is required to undertake in performing their functions under the NDIS Act. For example, a plan nominee might be required to enter into contracts on behalf of the participant);
      • involve the participant in decision-making processes;
      • assist the participant to make decisions for themselves; and
      • ascertain what judgements and decisions the participant would have made for themselves;
    3. understands and is committed to performing the duties of a nominee;
    4. is sensitive to the cultural and linguistic circumstances of the participant; and
    5. is familiar with, and able to work with, any communication system or other technological supports of the participant (rule 4.8(b) of the Nominees Rules);
  • the desirability of preserving family relationships and informal support networks of the participant (rule 4.8(c) of the Nominees Rules);
  • any existing arrangements that are in place between the person and the participant (rule 4.8(d) of the Nominees Rules);
  • where the NDIA has asked the person to answer any questions or provide any information in relation to the possible appointment of that person as a nominee (including requesting the person to consent to the release of information concerning their criminal history or to disclose any conflict of interest in relation to the person and the participant):
    1. any answers or information that have been provided by the person; and
    2. any refusal by the person to provide answers or information (rule 4.8(e) of the Nominees Rules);
  • any relevant views of:
    1. carers who assist the participant to manage their day-to-day activities and make decisions; and
    2. other persons who provide support to the participant (rule 4.8(f) of the Nominees Rules);
  • any relevant conviction for an offence under Commonwealth, State or Territory law (rule 4.8(g) of the Nominees Rules); and
  • any conflict of interest (external) (External website) in relation to the person and the participant (rule 4.8(f) of the Nominees Rules).

5.5.3 Additional considerations when deciding who to appoint as nominee when participant requests a particular person

Where a participant requests a particular person to be their nominee, the NDIA must also have regard to:

  • the principle that the person the participant has requested should ordinarily be appointed (rule 3.13(a) of the Nominees Rules);
  • any evidence that indicates that the person might have unduly or improperly induced or influenced the participant to request the appointment (rule 3.13(b) of the Nominees Rules); and
  • any conflicts of interest (external) (External website) (rule 3.13(a) of the Nominees Rules).

5.6 Appointing a plan nominee

The NDIA may appoint a person in writing to be a plan nominee for a participant for the purposes of the NDIS Act (section 86(1)).

An appointment of a plan nominee may be made at the request of the participant, or on the initiative of the NDIA (section 86(2)).

However, a person must not be appointed as a participant's plan nominee except where the NDIA has:

  • obtained the written consent of the person to be appointed (section 88(2)(a));
  • taken into consideration the wishes (if any) of the participant regarding the making of the appointment (section 88(2)(b)); and
  • given a copy of the instrument of nominee appointment to:
    1. the nominee (section 88(5)(a)); and (ii)
    2. the participant (section 88(5)(b)).

Also, before appointing a plan nominee the NDIA will have already considered all the matters that are relevant to determining whether it is necessary to appoint a nominee, and if so, the further matters that are relevant to determining who should be appointed.

The NDIA will also need to determine whether to appoint a plan nominee indefinitely, or for a specified period (see term of a nominee's appointment).

5.6.1 The appointment of a plan nominee may contain limits

Usually, a plan nominee is able to do any act that may be done by a participant under, or for the purpose of, the Act, that relates to:

  1. the preparation, review or replacement of the participant’s plan (rule 3.7(a) of the Nominee Rules); or
  2. the management of funding for supports under the participant’s plan (rule 3.7(b) of the Nominee Rules)

However, unlike the appointment of a correspondence nominee, the appointment of a plan nominee may limit the matters in relation to which the person is able to act on behalf of, or make decisions on behalf of a participant for the purposes of the NDIS Act (section 86(3)).

In some circumstances, it may be appropriate to limit the matters that a plan nominee is appointed to deal with.

The NDIA is able to specify limitations in the terms of the instrument of appointment. For example, the appointment might be restricted so as to prevent the nominee from specifying the goals, objectives and aspirations of the participant. In such a case, the nominee might still have authority with respect to the management of funding under a plan (rule 3.8 of the Nominees Rules).

It may also be appropriate, for example, to limit the functions of a plan nominee where:

  • the participant has requested that a nominee only undertake specific functions, in which case the nominee's appointment could be limited to those functions; or
  • a participant can be supported to undertake certain functions themselves but needs a nominee to undertake other functions on their behalf. For example, where a participant can be supported to specify their goals and aspirations, but a nominee is necessary to make decisions about supports under the participant's plan.

Alternatively, the NDIA might appoint two or more plan nominees, and, in each instrument of appointment, limit the matters in relation to which each person is the plan nominee (rule 3.8 of the Nominees Rules).

5.6.2 Can more than one plan nominee be appointed?

Yes. The NDIA may appoint more than one person to be a plan nominee for a participant for the purposes of the NDIS Act (section 86(6)).

5.6.3 Can a person be appointed as both plan nominee and correspondence nominee?

Yes. A person may be appointed as the plan nominee and the correspondence nominee of the same participant (section 88(1)).

5.7 Appointing a correspondence nominee

The NDIA may appoint a person in writing to be a correspondence nominee for a participant for the purposes of the NDIS Act (section 87(1)).

An appointment of a correspondence nominee may be made at the request of the participant, or on the initiative of the NDIA (section 87 (2)).

However, a person must not be appointed as a participant's correspondence nominee except where the NDIA has:

  • obtained the written consent of the person to be appointed (section 88(2)(a));
  • taken into consideration the wishes (if any) of the participant regarding the making of the appointment (section 88(2)(b)); and
  • given a copy of the instrument of nominee appointment to:
    1. the nominee (section 88(5)(a)); and
    2. the participant (section 88(5)(b)).

Also, before appointing a correspondence nominee the NDIA will have already considered all the matters that are relevant to determining whether it is necessary to appoint a nominee, and if so, the further matters that are relevant to determining who should be appointed.

The NDIA will also need to determine whether to appoint a correspondence nominee indefinitely, or for a specified period (see term of a nominee's appointment).

Unlike a plan nominee, the matters a correspondence nominee is able to deal with cannot be limited any further than the limitations contained in the Act (the limitations are contained in section 79(1)).

5.8 Additional requirements for appointing certain body corporate as nominee

Where deciding whether to appoint as a nominee a person that is a body corporate, the NDIA is required to request the person to identify an officer or employee who will be closely involved in the performance of the nominee functions under the NDIS Act (rule 4.13(a) of the Nominees Rules).

5.9 Term of a nominee's appointment

Under the NDIS Act, the NDIA is able to appoint a plan nominee or a correspondence nominee indefinitely, or for a specified term (section 86(4) and 87(3)).

An appointment that is for a specified term can expire on the expiry of a specified period, or on the expiry of a specified event. For example, at the expiry of 6 months or when a participant turns 40 years of age (section 86(5) and 87(4)).

The following are examples of when the NDIA might decide that an appointment for a specified term is appropriate:

  • the NDIA considers that it would be desirable to review the appointment of a nominee after a period to see whether the participant still needs a nominee (rule 4.10(a) of the Nominees Rules);
  • the NDIA has cause to believe that an appointed decision-maker (for example, a guardian or power of attorney) could be appointed, and appoints a nominee in the interim (rule 4.10(b) of the Nominees Rules);
  • the person that the participant would like as a nominee is presently not in a position to act (for example, they might be overseas or hospitalised), and the NDIA appoints a nominee until that person is available (rule 4.10(c) of the Nominees Rules); or
  • the person appointed as nominee is a court-appointed (external) (External website) or participant-appointed decision-maker (external) (External website), and the NDIA considers it appropriate that the appointment as nominee should lapse if the appointment as decision-maker lapses (rule 4.10(d) of the Nominees Rules).

In deciding whether the appointment should be for a specified term, and if so, what the length of the term should be, the NDIA must have regard to the views of:

  • the participant (rule 4.11(a) of the Nominees Rules);
  • any carers who assist the participant to manage their day-to-day activities and make decisions (rule 4.11(b) of the Nominees Rules); and
  • other persons who provide support to the participant (rule 4.11(c) of the Nominees Rules).

5.10 Decision to appoint a nominee can be reviewed

A decision by the NDIA to appoint a plan nominee or a correspondence nominee can be reviewed, and is known as a reviewable decision (section 99(l) and 99(m)).

Therefore, the NDIA must notify each person directly affected by the decision to appoint a nominee in writing, including a statement to the effect that the person may request that the NDIA review the decision (section 100(1)).

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

This page current as of
18 July 2019