Nominees Operational Guideline - Duties of nominees

6. Duties of nominees

Under the NDIS Act and the Nominees Rules (External website), nominees have duties to both the participant and the NDIA.

These duties provide guidance in relation to how nominees are expected to act, and are applicable to both plan nominees and correspondence nominees regardless of whether they have been appointed at the request of a participant, or on the initiative of the NDIA.

The duties of nominees operate under the NDIS in three principal ways:

  • the duties of nominees provide guidance in relation to how nominees are expected to perform in the role of nominee (rule 5.2(a) of the Nominees Rules);
  • when determining who should be appointed as a nominee, the NDIA must consider whether the person is willing and able to comply with the duties of nominees (rule 5.2(b) of the Nominees Rules); and
  • any breach of the duties is a matter which the NDIA must have regard to in cancelling or suspending the appointment of a nominee (rule 5.2(c) of the Nominees Rules).

6.1 Duties of nominees under the NDIS Act and the Nominees Rules

6.1.1 Duty to ascertain wishes of the participant and to promote the personal and social wellbeing of the participant

A nominee has a duty under the NDIS Act to:

  • ascertain the wishes of the participant; and
  • act in a manner that promotes the personal and social wellbeing of the participant (section 80(1)).

This duty is not breached if the nominee does a thing, or refrains from doing a thing, so long as:

  • the nominee reasonably believes they have ascertained the wishes of the participant in relation to the act (sections 80(2)(a) and 80 (3)(a)); and
  • the nominee reasonably believes that doing the act, or not doing the act promotes the personal and social wellbeing of the participant (section 80(2)(b) and 80(3)(b)).

6.1.2 Duty of plan nominee appointed on the initiative of the NDIA to act only if participant is not capable

If a participant's plan nominee was appointed on the initiative of the NDIA, the plan nominee may only do an act on behalf of a participant if the nominee considers that the participant is not capable of doing, or being supported to do the act (rule 5.5 of the Nominees Rules, see also section 78(5)).

6.1.3 Duty of plan nominee appointed at the request of the participant to act only if participant is not capable

A plan nominee appointed at the request of the participant has a duty to refrain from doing an act unless satisfied that:

  • it is not possible for the participant to do, or to be supported to do, the act themselves (rule 5.6(a) of the Nominees Rules); or
  • it is possible for the participant to do the act by themselves, but the participant does not want to do the act themselves (rule 5.6 (b) of the Nominees Rules).

This duty is not intended to affect any obligations or restrictions that impact on a plan nominee and which apply under State or Territory law, including obligations or restrictions that impact on them in their capacity as a court-appointed decision-maker (External website) or a participant-appointed decision-maker (External website) (rule 5.6(b) of the Nominees Rules).

6.1.4 Duty to consult

A nominee has a duty to consult with the following people in relation to doing acts under, or for the purposes of, the NDIS Act:

If more than one person is appointed as plan nominee, a further duty of each of them is to consult with the others before doing any act under, or for the purposes of, the NDIS Act (rule 5.9 of the Nominees Rules).

6.1.5 Duty to develop capacity of the participant

A nominee has a duty to apply their best endeavours to developing the capacity of the participant to make their own decisions, where possible to a point where a nominee is no longer necessary (rule 5.10 of the Nominees Rules).

It is expected that the NDIA will assist nominees in fulfilling this duty (rule 5.11 of the Nominees Rules).

6.1.6 Duty to avoid or manage conflicts of interest

A nominee has a duty to the participant to:

  • avoid or manage any conflict of interest (External website) in relation to the nominee and the participant (rule 5.12(a) of the Nominees Rules); and
  • inform the NDIA of any such conflict of interest as it arises (rule 5.12(b) of the Nominees Rules).

A conflict of interest is defined in the Nominees Rules to mean any conflict between the interests of the person and the participant that would impact on the person's ability to carry out their role as nominee (rule 7.4 of the Nominees Rules).

In the case of a person that is a body corporate, a conflict arises when there is any conflict between the interests of any officer or employee who is closely involved in the performance of the nominee functions under the NDIS and the participant that would impact on the person's ability to carry out their role as nominee (rule 7.4 of the Nominees Rules).

Without limiting the circumstances in which a conflict may arise, a conflict always arises if the nominee is, in a professional or administrative capacity, directly or indirectly responsible for, or involved in, the provision of any services for fee or reward to the participant (rule 5.13 of the Nominees Rules).

6.1.7 Duty for corporate nominee to inform NDIA if person closely involved in performance of nominee functions changes

A nominee that is a body corporate has a duty, in relation to each participant in respect of which the person is the nominee, to:

  • ensure that there is an officer or employee who is closely involved in performance of the nominee functions under the NDIS (rule 5.14(a) of the Nominees Rules); and
  • inform the NDIA of who that officer or employee is, including if a different officer or employee takes on that responsibility (rule 5.14(b) of the Nominees Rules).
This page current as of
18 July 2019