1. What is the purpose of this operational guideline?
This Operational Guideline is intended to provide guidance in relation to determining whether a nominee should be appointed to act on behalf of, or make decisions on behalf of a participant for the purposes of the National Disability Insurance Scheme Act 2013 (NDIS Act).
In addition, this Operational Guideline will provide guidance in relation to the appointment of nominees, including who should be appointed, the term of the appointment, the duties of nominees and the cancellation or suspension of a nominee appointment.
2. What is the relevant legislation?
- Sections 3, 4, 5, 9, 17A, 78 – 98, 99 and 100 of the National Disability Insurance Scheme Act 2013 (External website) (NDIS Act) (external); and
- National Disability Insurance Scheme (Nominees) Rules 2013 (External website) (Nominees Rules) (external).
A nominee is a person who is appointed in writing, at the request of a participant, or on the initiative of the NDIA, to act on behalf of, or make decisions on behalf of a participant for the purposes of the NDIS Act.
The NDIS Act requires and permits participants to do a range of different things for the purposes of the National Disability Insurance Scheme (NDIS). For example, participants must prepare a statement of goals and aspirations, and may make a plan management request.
Unlike a participant who is a child, a participant who is over 18 years of age will be presumed, so far as is reasonable in the circumstances, to have capacity to determine their own best interests and make decisions that affect their own lives. As far as is possible, the NDIA's focus will be on supporting and building the capacity of participants to make their own decisions for the purposes of the NDIS Act.
Where it is not possible for a participant to make their own decisions, or be supported to make their own decisions, the National Disability Insurance Agency (NDIA) can appoint a nominee to act on behalf of, or make decisions on behalf of a participant.
Most participants who need a nominee already have some kind of formal or informal arrangement in place to help them live their lives. The NDIS is not intended to replace these support networks. Rather, the focus of the NDIA will be on strengthening and, where necessary, formalising the existing support networks of a participant.
Two types of nominees which can be appointed under the NDIS Act, namely a plan nominee and a correspondence nominee. An appointment can be made at the request of a participant, or on the initiative of the NDIA.
Whichever way the appointment of a nominee comes about, the NDIA must have regard to the matters which are relevant in determining how the NDIA will decide whether it is necessary to appoint a nominee and if so, who should be appointed as nominee.
The NDIS Act and the Nominees Rules impose duties which nominees are required to adhere to. These duties are also relevant when determining whether a nominee should be appointed, suspended or cancelled.