Nominees

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?

3. Overview

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. (For further information, see appointment of nominees).

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.

4. Principles relating to nominees

The following general principles which guide all actions under the NDIS Act are particularly relevant to nominees:

  • people with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports (section 4(4));
  • people with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives, to the full extent of their capacity (section 4(8));
  • people with disability should be supported in all their dealings and communications with the NDIA so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs (section 4(9)); and
  • the role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected (section 4(12)).

The NDIS Act also sets out general principles which guide the actions of people who may do acts or things on behalf of others which are particularly relevant to 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 that 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 or a participant-appointed decision-maker (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 or participant-appointed decision-maker, 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 or a participant-appointed decision- maker, 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 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 (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 (rule3.7(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 or participant-appointed decision-maker, 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.

6. Duties of nominees

Under the NDIS Act and the Nominees Rules, 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 or a participant-appointed decision-maker (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 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).

7. Rights and obligations relating to nominees

Under the NDIS Act, a nominee has certain rights and obligations, including the right to perform certain actions on behalf of a participant.

7.1 Actions of plan nominee on behalf of participant

As a general rule, a plan nominee may do anything that may be done by a participant under, or for the purposes of, the NDIS Act that relates to:

However, in some circumstances, it may be appropriate to limit the matters that a plan nominee is appointed to deal with (see appointment of a plan nominee may contain limits).

A request that may be made by a participant under the NDIS Act may be made by the participant's plan nominee on behalf of the participant (section 78(2)).

An act which is done by a participant's plan nominee has effect for the purposes of the NDIS Act as if it had been done by the participant personally (section 78(3)).

However, if the NDIA gives a notice to a participant who has a plan nominee, the plan nominee may not do an act that is required by the notice to be done by the participant personally (an example would be a notice to a participant requesting that the participant undergo an assessment or examination) (section 78(4)).

If a participant's plan nominee was appointed on the initiative of the NDIA, the plan nominee may only do an act in relation to the preparation, review or replacement of the participant's plan, or the management of the funding for supports under the participant's plan if the nominee considers that the participant is not capable of doing, or being supported to do, the act themselves (section 78(5)).

7.2 Plan nominee required to give statement regarding disposal of money

The NDIA may give the plan nominee of a participant a notice that requires the plan nominee to give the NDIA a statement about a matter relating to the disposal by the nominee of NDIS funds (defined as ‘NDIS amount' in the Act) paid to the plan nominee on behalf of the participant (section 84(1)).

For example, giving a notice of this kind would be appropriate where the NDIA wishes to conduct an audit of a participant's plan that is being managed by a plan nominee.

A notice of this kind must specify:

  • how the plan nominee is to give the statement to the NDIA (section 84(2)(a) and 84(3)); and
  • the period within which the plan nominee is to give the statement to the NDIA, which must be at least 14 days from the date the notice is given (section 84(2)(b) and 84(4)).

A plan nominee commits an offence of strict liability under the NDIS Act if they refuse or fail to comply with a notice requiring that they provide a statement relating to the disposal of NDIS amounts received on behalf of a participant (section 84(6) and 84(8)).

However, a plan nominee will not commit an offence for failing to comply with a notice of this kind where they have a reasonable excuse. A plan nominee will have a reasonable excuse where complying with the notice might tend to incriminate or expose them to a penalty (sections 84(7) and 84(7A)).

7.3 Actions of correspondence nominee on behalf of participant

A correspondence nominee may do any act that may be done by a participant under, or for the purposes of, the NDIS Act except for an act that relates to:

The role of a correspondence nominee is significantly narrower than the role of a plan nominee. A correspondence nominee can, for example, make requests on behalf of a participant (such as requests for information) and receive letters and notices from the NDIA on behalf of the participant.

Without limiting the types of acts that a correspondence nominee can do on behalf of a participant, a request that may be made by a participant under the NDIS Act may be made by the participant's correspondence nominee on behalf of the participant (section 79(2)).

An act which is done by a participant's correspondence nominee has effect for the purposes of the NDIS Act as if it had been done by the participant personally (section 79(3)).

However, if the NDIA gives a notice to a participant who has a correspondence nominee, the correspondence nominee may not do an act that is required by the notice to be done by the participant personally (an example would be a notice to a participant requesting that the participant undergo an assessment or examination) (section 79(4)).

7.4 NDIA obligation to give notices to correspondence nominee

Any notice that the NDIA is authorised, or required under the NDIS Act to give to a participant must be given by the NDIA to the participant's correspondence nominee (section 81(1)).

The notice must, in every respect, be in the same form, and in the same terms, as if it was being given to the participant directly (section 81(2)).

The NDIA may give the notice to the correspondence nominee personally, by post or by any other means approved by the NDIA (section 81 (2)).

If a notice is given to a participant's correspondence nominee, the notice is taken to have been given to the participant on the day the notice was given to the correspondence nominee (section 82(1)(a)).

7.5 Correspondence nominee may satisfy certain requirements on behalf of participant

If a notice includes a requirement that a participant inform the NDIA of a certain matter, give information or produce a document, the requirement may be satisfied by the correspondence nominee on behalf of the participant (section 82(1)(b)).

Any act performed by a correspondence nominee for the purposes of satisfying such a requirement has effect as if it were performed by the participant (section 82(1)(c)).

For the purposes of the NDIS Act, a participant will be taken to have complied with a requirement to inform the NDIA of a matter, or to give information or produce a document within a period, if the correspondence nominee satisfies the requirement on their behalf (section 82 (2)).

However, if a correspondence nominee fails to satisfy such a requirement, the participant is taken, for the purposes of the NDIS Act to have failed to comply (section 82(2)(d) and 82(3)).

7.6 Right of nominee to attend with participant

If the NDIA makes a request that a participant undergo an assessment or examination, the participant's plan nominee or correspondence nominee may accompany the participant while the assessment or examination is being conducted:

  • if the participant wishes (section 85(1)(c)); and
  • to the extent that the person conducting the assessment or examination consents (section 85(1)(d)).

Where a participant's nominee is a body corporate, an officer or employee of the nominee may accompany the participant to the assessment or examination (section 85(2)).

7.7 Nominee's obligation to inform NDIA of matters affecting ability to act as nominee

The NDIA may give a plan nominee or a correspondence nominee a written notice that requires the nominee to inform the NDIA if:

  • an event or change in circumstances happens; or
  • the nominee becomes aware that an event or change of circumstances is likely to happen (section 83(1)(a)); and

The event or change in circumstances is likely to affect:

  • the ability of the nominee to act as the plan nominee or correspondence nominee of the participant;
  • the ability of the NDIA to give notices to the nominee under the NDIS Act; or
  • the ability of the nominee to comply with notices given to the nominee under the NDIS Act (section 83(1)(b)).

A notice of this kind must specify:

  • how the nominee is to inform the NDIA of the event or change in circumstances (section 83(2)(a) and 83(3)); and
  • the period in which the nominee is to inform the NDIA, which must be a period of at least 14 days beginning on the day on which:
    1. the event or change in circumstances happens; or
    2. the nominee becomes aware that the event or change in circumstances is likely to happen (section 83(2)(b)).

The NDIA will ordinarily give a notice of this kind to a nominee upon their initial appointment, and at other relevant times, where necessary, to ensure that the NDIA has sufficient information surrounding the appropriateness of the nominee arrangement.

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 or a participant-appointed decision-maker;
    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 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.

9. Other matters relating to nominees

9.1 NDIA's powers to give notices to a participant

The provisions in the NDIS Act which relate to nominees are not intended, in any way, to affect the NDIA's powers under other parts of the NDIS Act to give notices to, or make requirements of a participant who has a nominee (section 95). For instance, the NDIA could require a participant to undergo an assessment or examination.

9.2 Notification to nominee where notice is given to a participant

If, under the NDIS Act, the NDIA gives a notice to a participant who has a correspondence nominee, the NDIA may inform the correspondence nominee that the notice was given to the participant and what the terms of the notice were (section 96 (1)).

If, under the NDIS Act:

  • the NDIA gives a notice to a participant who has a plan nominee; and
  • the notice relates to the preparation, management or review of the participant's plan;

the NDIA must inform the plan nominee that the notice was given to the participant and what the terms of the notice were (section 96 (2)).

9.3 Protection of participant against liability for actions of nominee

Nothing in the NDIS Act renders a participant guilty of an offence in relation to act or omission of the participant's nominee (section 97).

9.4 Protection of nominee against criminal liability

A nominee of a participant is not subject to any criminal liability under the NDIS Act in relation to:

  • any act or omission of the participant (section 98(1)(a)); or
  • anything done, in good faith, by the nominee in their capacity as nominee (section 98(1)(b)).