Nominees Operational Guideline - Suspension and cancellation of nominee appointments

8. Suspension and cancellation of nominee appointments

Under the NDIS Act there are several situations in which the NDIA is able, or is required, to suspend or cancel the appointment of a nominee.

When considering the cancellation or suspension of a nominee appointment the interests of the participant should always be paramount.

8.1 Cancellation of nominee appointment at the request of participant

8.1.1 Where nominee was appointed at the request of a participant

The NDIA must, as soon as is practicable, cancel a nominee appointment in writing where:

  • a nominee was appointed at the request of a participant; and
  • the participant requests that the NDIA cancel the appointment (section 89(1)).

A request by a participant that the NDIA cancel a nominee appointment in the above circumstances does not need to be in writing. Where a participant makes a request that is not in writing, the NDIA must make a written record of the request (section 89(2)).

8.1.2 Where nominee was appointed on the initiative of the NDIA

The NDIA may (i.e. is able, but not required to) cancel a nominee appointment in writing where:

  • a nominee was appointed on the initiative of the NDIA; and
  • the participant requests that the NDIA cancel the appointment (section 90(1)).

A request by a participant that the NDIA cancel a nominee appointment in the above circumstances does not need to be in writing. Where a participant makes a request that is not in writing, the NDIA must make a written record of the request (section 90(2)).

Where a request is made by a participant to cancel the appointment of a nominee who was appointed on the initiative of the NDIA:

  • the NDIA must decide whether to cancel the appointment within 14 days of receiving the request (section 90(3)(a)); and
  • if the NDIA decides not to cancel the appointment, the NDIA must give the person and the participant written notice of the decision.

When deciding whether it is appropriate to cancel a nominee appointment, the NDIA will consider the matters which the NDIA must have regard to in suspending or cancelling a nominee's appointment.

8.2 Cancellation of nominee appointment where nominee no longer wishes to be a nominee

The NDIA must, as soon as is practicable, cancel a nominee appointment in writing where the nominee informs the NDIA in writing that they no longer wish to be a nominee under that appointment (section 89(3)).

8.3 NDIA may suspend or cancel nominee appointment when a nominee's ability to act as nominee becomes compromised

Under the NDIS Act, the NDIA may give a nominee a written notice that requires the nominee to notify the NDIA of any event or change in circumstances that is likely to affect the ability of the nominee to act on behalf of the participant (see nominees obligation to inform NDIA of matters affecting ability to act as nominee).

The NDIA may (i.e. is able, but not required to) suspend or cancel a nominee's appointment if:

  • the NDIA gives the nominee a notice requesting information about the nominee's ability to act on behalf of the participant (section 90(4)(a));
  • in response to the notice, the nominee informs the NDIA that an event or change in circumstances has happened, or is likely to happen, which compromises the nominees ability to act (section 90(4)(b)); and
  • having regard to that response, the NDIA decides it is appropriate to suspend or cancel the nominee appointment (section 90(4) (c)).

When deciding whether it is appropriate to suspend or cancel a nominee appointment, the NDIA will consider the matters which the NDIA must have regard to in suspending or cancelling a nominee's appointment.

8.4 NDIA may suspend or cancel nominee appointment when a nominee fails to comply with notice

The NDIA may (i.e. is able, but not required to) suspend or cancel a nominee's appointment if:

  • the NDIA gives the plan nominee or correspondence nominee a notice requesting information about the nominees ability to act on behalf of the participant (section 90(5)(a)); or
  • the NDIA gives the plan nominee a notice requesting information about a matter relating to the disposal of an NDIS amount paid to the nominee on behalf of the participant (section 90(5)(a)); and
  • the nominee does not comply with a requirement specified in the notice (section 90(5)(b)).

When deciding whether it is appropriate to suspend or cancel a nominee appointment, the NDIA will consider the matters which the NDIA must have regard to in suspending or cancelling a nominee's appointment.

8.5 Suspension and cancellation where nominee's appointment may cause physical, mental or financial harm to participant

The NDIA may (i.e. is able, but not required to) suspend a nominee's appointment in writing if the NDIA has reasonable grounds to believe that the nominee has caused, or is likely to cause, physical, mental or financial harm to the participant (section 91(1)).

When deciding whether it is appropriate to suspend a nominee appointment, the NDIA will consider the matters which the NDIA must have regard to in suspending or cancelling a nominee's appointment.

If a person's appointment as nominee is suspended in this way, the NDIA must:

  • give the person and the participant a copy of the instrument of suspension (section 91(2)(a)); and
  • by written notice to the person, request the person to give the NDIA a statement, within 28 days after the notice is given, setting out the reason/s why the person's appointment should not be cancelled by the NDIA (section 91(2)(b)).

Where the person provides a response, the NDIA must decide, as soon as is practicable, whether to cancel the nominee's appointment having regard to the matters which the NDIA must have regard to in suspending or cancelling a nominee's appointment (sections 91(3) and 91(4)).

If the NDIA decides not to cancel the person's appointment, the suspension of the person's appointment ends, and the NDIA must give the person and the participant written notice of the decision (section 91(5)).

Where the person does not provide a response within the 28 day period, the NDIA must cancel the person's appointment in writing as soon as practicable after that period ends (section 91(6)).

8.6 Matters which the NDIA must have regard to in suspending or cancelling a nominee's appointment

When cancelling or suspending the appointment of a nominee, the NDIA must have regard to the following:

  • any breach of the duties of nominees under the NDIS Act or Nominees Rules (rule 6.5(a) of the Nominees Rules);
  • the previous conduct of the nominee in relation to the participant (rule 6.5(b) of the Nominees Rules);
  • the results of any review of the participant's plan (rule 6.5(c) of the Nominees Rules);
  • the views of the participant, and of any person who cares for or supports the participant (rule 6.5(d) of the Nominees Rules);
  • the impact on the participant of any cancellation or suspension of appointment (rule 6.5(e) of the Nominees Rules);
  • whether the nominee has been convicted of a criminal offence that is reasonably likely to compromise the ability of the person to act as nominee (rule 6.5(f) of the Nominees Rules); and
  • whether the participant still needs a nominee, having regard to:
    1. whether the participant would be able to participate effectively in the NDIS without having a nominee appointed;
    2. the principle that a nominee should be appointed only when necessary, as a last resort, and subject to appropriate safeguards;
    3. whether the participant has a court-appointed decision-maker (External website) or a participant-appointed decision-maker (External website);
    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
    5. any relevant views of:
      • the participant;
      • any person (including a carer) who assists the participant to manage their day-to-day activities and make decisions; and
      • any court-appointed decision-maker (External website) or participant-appointed decision-maker (rule 6.5(g) of the Nominees Rules).

8.7 Effect of suspension on nominee's appointment

While a person's appointment as a nominee is suspended, the appointment has no effect under the NDIS Act (section 92 (2)).

If a person's appointment is suspended, the NDIA may appoint another person to be a nominee of the participant for a period specified in the instrument of appointment (section 92(3)).

8.8 NDIA must give instrument of suspension or cancellation to person and participant

If the appointment of a nominee is suspended or cancelled by the NDIA, the NDIA must give the person and the participant a copy of the instrument of suspension or cancellation (sections 89(4), 90(6) and 91(7)).

8.9 Decision to suspend or cancel a nominee appointment can be reviewed

Any decision of the NDIA to cancel or suspend, or refuse to cancel or suspend the appointment of a nominee can be reviewed, and is known as a reviewable decision (section 99(n)).

Therefore, the NDIA must notify each person directly affected by the decision to cancel or suspend, or refuse to cancel or suspend the nominee's appointment 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