What is a nominee under the National Disability Insurance Scheme?
People with disability are presumed to have capacity to make decisions that affect their own lives. This is usually the case, and it will not be necessary to appoint a person or a nominee where it is possible to support, and build the capacity of participants to make their own decisions for the purposes of the National Disability Insurance Scheme (NDIS).
However, the National Disability Insurance Scheme Act 2013 (NDIS Act) recognises that there may be circumstances where it is necessary for a person to be appointed as a nominee of a participant to act on behalf of, or make decisions on behalf of a participant. It is important to remember that this is a last resort measure.
Appointments of nominees will be justified only when it is not possible for participants to be assisted to make decisions for themselves. Appointments of nominees usually come about as a result of a participant requesting that a nominee be appointed. More information on the appointment process is set out below.
It is only in rare and exceptional cases that the NDIA will find it necessary to appoint a nominee for a participant who has not requested that an appointment be made. In appointing a nominee, the NDIA will have regard to the participant’s wishes and the participant’s circumstances (including their formal and informal support networks such as carers, family and guardians). The NDIS Act (section 80) and Nominee Rules (Part 5) set outs the duties of nominees to ensure that participants have every opportunity to participate in the decision-making process for their plans.
Under the NDIS, there are 2 types of nominee: a plan nominee and a correspondence nominee. A single person can be appointed as both plan nominee and correspondence nominee. Either type of nominee can be appointed either indefinitely or for a specified term. The NDIA will issue an instrument of appointment which sets out the type of nominee being appointed, what acts and decisions they can do, the length of the appointment (if any) and any other relevant matters such as whether there are other nominees appointed.
Plan nominee and their role
Usually, a plan nominee is able to do any act that may be done by a participant under, or for the purposes of, the NDIS Act, that relates to:
- the preparation, review or replacement of the participant’s plan; or
- the management of funding for supports under the participant’s plan.
In some circumstances, a plan nominee may be limited to certain things. Under the NDIS Act the NDIA is able to specify limitations in the instrument of appointment. For example, the appointment might be restricted so as to prevent the plan nominee from specifying the goals, objectives and aspirations of the participant. In such a case, the plan nominee might still have authority with respect to the management of funding under a plan. Alternatively, the NDIA might appoint 2 or more plan nominees, and, in each instrument of appointment, limit the matters in relation to which each person is the plan nominee.
Correspondence Nominee and their role
In contrast, the role of a correspondence nominee is significantly narrower. Although a correspondence nominee is able to do a range of acts on behalf of a participant under the NDIS, they are not able to do any of the acts by a plan nominee. The acts that a correspondence nominee is able to do include making requests to the NDIA (for example, requests for information), and receiving notices from the NDIA, on behalf of the participant.
The matters the correspondence nominee is able to deal with cannot be limited further by the instrument of appointment.
How appointment of nominee comes about
A plan nominee or a correspondence nominee may be appointed:
- at the request of the participant; or
- on the initiative of the CEO of the NDIA.
Appointment at request of participant
If the 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.
If the participant has requested that a particular person be appointed as nominee, the NDIA is to have regard to the following:
- the principle that the person the participant has requested should ordinarily be appointed;
- any evidence that indicates that the person might have unduly or improperly induced or influenced the participant to request the appointment; and
- any conflicts of interest.
Appointment without a request from the participant
If the participant has not requested that a nominee be appointed, the NDIA, when deciding whether to appoint a nominee needs to take into account a number of considerations as well as consult with the participant. More information can be found in Part 3 of the Nominee Rules.
An example of a circumstance in which a nominee might be appointed without a request from the participant is where the NDIA considers that the participant needs a nominee, but is unable to request appointment themselves even with support. In this scenario, the initiative might come from a carer or family member.
Information about the appointment of guardians as nominees is set out below.
Guardianship is different from nominees. Guardianship is the authority to manage the legal and non-legal affairs of a person such as power of attorney or Centrelink nominations. Guardians are not nominees under the NDIS and there is no automatic process for guardians to be made nominees. Where it has been identified by the NDIA that the participant requires a nominee and there is a guardianship arrangement in place, the presumption is that the guardian will be appointed as the nominee.
Guardians being appointed as nominees.
As part of the appointment process for nominees the NDIA will have regard to whether the participant has a guardian, and will take the views of the guardian into consideration. There is a presumption that a guardian should be appointed nominee where their responsibilities are comparable to the duties of a nominee.
NDIS participants under 18
For a participant under 18 years of age child representatives instead of nominees can be appointed. A child representative is only appointed where the NDIA is making a determination that a person other than the person or persons with parental responsibility should be the child representative. There are rules about who has parental responsibility for a child participant and when a child representative can be appointed by the NDIA. Further information can be found at:
- Chapter 4, Part 4 of the National Disability Insurance Scheme Act 2013 (sections 74–77);
- National Disability Insurance Scheme (Children) Rules 2013;
- Operational Guidelines – Child Representatives
You can find further information on nominees:
- Chapter 4, Part 5 of the National Disability Insurance Scheme Act 2013 (sections 78 – 98)
- National Disability Insurance Scheme (Nominee) Rules 2013 (Nominee Rules)
- Operational Guidelines – Nominees