Plan Nominees: All that you don't know

The world of NDIS nominees and decision making is complex. If you are scratching your head a bit, wondering who can do what, you’re not alone. We’ve developed this list of FAQs to help break down the role of NDIS nominees into bite-sized chunks.

The first thing to note is that not every NDIS participant requires a nominee. People are presumed to have the capacity to make decisions that affect their own lives, so in most cases, participants will make their own decisions in their dealings with the NDIS – with support when required.

So what is a nominee?

A nominee is a person appointed to make NDIS-related decisions or act on a participant’s behalf. A nominee appointment does not extend to other life decisions outside of NDIS.

Under the NDIS, there are two types of nominees: a plan nominee and a correspondence nominee.

Plan nominee

A plan nominee can make decisions about

Planning (preparing, reviewing, or replacing a person’s plan)
Managing a participant’s plan funding (receiving, managing, and using funding)

A plan nominee can be appointed to do either or both of these things. When a plan nominee does something on a participant’s behalf, the NDIA treats this as if the participant has done it themselves.

BUT, there are a few variables to note.

A participant might have more than one plan nominee with different responsibilities, but only one can manage the funding in the plan.
A participant can ask the NDIA to limit the things a plan nominee can do. For example, a person might decide to plan his or her goals independently but want a nominee to help manage funding. The NDIA can also limit what plan nominees can and can’t do.

But have no fear – these particulars should be detailed in the NDIA’s instrument of appointment, which sets out the type of nominee being appointed, what acts and decisions they can carry out, the length of the appointment (if any), and any other relevant matters, such as whether other nominees have been appointed.[1]

Correspondence nominee

A correspondence nominee has a different role and cannot undertake the functions of the plan nominee in relation to planning and funding (unless of course they have also been appointed as the plan nominee – this can be complex!).

A correspondence nominee can

ask the NDIA for information about or for the participant
receive letters and notices from the NDIA about or for the participant

When a correspondence nominee writes to the NDIA on a participant’s behalf, the NDIA treats this as if the participant has written to the Agency themselves. Likewise, when the NDIA sends a correspondence nominee a piece of information, the NDIA treats this as if it is sending that information to the participant. Any notice the NDIA would normally give to a participant will be given to the correspondence nominee.[2]

When is a nominee appointed?

Most people will not need a nominee and can be supported with their NDIS decision making. However, the NDIS Act recognises that there are circumstances where, as a last resort, it is necessary for a person to be appointed as a nominee. Appointments of nominees will be justified only when it is not possible for participants to be assisted to make decisions for themselves.

A note about express consent

One alternative to appointing a nominee is for the participant to give express consent for the NDIA to share relevant information with certain people and arrange for people to do things on their behalf. Express consent differs from nominees because the support person cannot make decisions on the person’s behalf. Participants can give express consent by using an NDIS consent form, or they can tell the NDIA orally, in writing, or in another way that suits their communication style.

How are nominees appointed?

Nominees are usually appointed by the participant themselves. 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 one.

If a participant wants a nominee

The participant can contact the NDIA with the details of the proposed nominee
The nominee will then need to show proof of identity and undertake screening questions to determine suitability
The nominee will need to confirm and agree to the nominee duties set out in the letter of appointment, including any conditions with the NDIA

Find out more about the full process here.

When can a plan nominee act on a participant’s behalf?

A plan nominee who is appointed at a participant’s request can only do things on that person’s behalf if they believe:

it is not possible for that person to do something or be supported to do it
it is possible for that person to do something, but that person does not want to do it[3]
If a participant has a plan nominee appointed by the NDIA, the nominee can only do something on a participant’s behalf if they believe that the person is unable to either
make the decision or complete the task
be supported to make the decision or complete the task[4]

What responsibilities do nominees have?

Duties to the participant: Nominees have a duty to understand the participant’s wishes and promote their personal and social wellbeing. Where participants are unable to let nominees know what they want, nominees must try to work out those preferences. They might do this by reviewing the participants’ past decisions, drawing on their experiences with the participants, and consulting others.

Duty to consult: Before making an NDIS decision, nominees must talk with other people in the participant’s life. This means consulting with any other NDIS-appointed nominees, court-appointed decision makers, informal decision makers, and people who help the participant make decisions and manage day-to-day activities, such as support workers.

Duty to develop the participant’s capacity: Nominees must help build the participant’s skills to make decisions, ideally building those skills to the point where the participant can make decisions for themselves and no longer require a nominee.

Duty to avoid or manage conflicts of interest: Nominees must tell the NDIA about any conflict of interest they have in relation to the participant, such as, if they provide the participant with paid services. Nominees must also tell the NDIA how they will manage this conflict of interest.

There are additional requirements for body corporates acting as nominees, which are explained on the NDIS website.

Duties to the NDIS: The NDIA may send either the nominee or the participant a notice, usually a letter, that tells the nominee when they need to complete an action or provide the NDIS with information. The nominee must comply with these notices.[5]

Are guardians the same as nominees?

No. Guardians play a different role than nominees. Guardianship is the authority to manage the legal and non-legal affairs of a person, such as health and medical decisions depending on the scope of the guardianship order. A guardian can only be appointed as a last resort through a legal tribunal process. You can contact your state or territory guardianship office for more information about guardianship in your jurisdiction.

Guardians are not nominees under the NDIS, and there is no automatic process for guardians to be made nominees, but the same person may be appointed as both guardian and nominee. Where it has been identified by the NDIA that the participant requires a nominee and there is a guardianship arrangement in place, the NDIA has stated that it presumes that the guardian will be appointed as the nominee.[6]

What about children?

For a participant under 18 years of age, child representatives can be appointed instead of nominees. Most of the time, persons with parental responsibility for the child under the NDIS Act will become child representatives (this usually happens automatically for most parents). A child representative is only appointed by the NDIA when it determines that a person other than those 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.[7] Further information can be found in Operational Guidelines – Child Representatives.

Who can’t be a nominee?

There are some people who cannot be appointed nominees, including a person under the age of 18 and the NDIA itself. Noting that in some cases, someone who works for the NDIA could be a nominee for say a loved one.

Are plan nominees liable?

A plan nominee doesn’t have any criminal liability under the laws of the NDIS for the participant’s actions or for anything the plan nominee does in good faith. However, an exception would be made if a plan nominee failed to comply with a notice from the NDIA asking for a statement about the use of the participant’s funding. A plan nominee may be responsible for criminal offences under other laws in this case.

The NDIA also monitors and investigates the misuse of NDIS funds, including misuse by nominees. Find out more about fraud on the NDIA website.

What happens if there is a dispute about nominee decisions?

Nominees must always act in participants’ best interests. They are required to try to support the participant to make decisions and must try to find out what the participant wants to happen. If a participant has concerns about something a nominee has done, they should talk to their support coordinator, local area coordinator, or planner for further advice. They can also contact the NDIA.

If a participant still has concerns, they can ask the NDIA to cancel their nominee at any time. The NDIA my also suspend or cancel a nominee’s appointment if it is reasonable to believe the nominee has caused or is likely to cause the participant physical, mental, or financial harm.

Find out more about cancelling or suspending a nominee appointment here.

What to know more?

This was a really broad overview of the role of nominees in the NDIS. We have used the word nominee 101 times in this article, so your eyes might be starting to water right now. However, if you are thirsty for more details, check out these links:

[1] https://www.ndis.gov.au/understanding/families-and-carers/guardians-and-nominees-explained#:~:text=The%20NDIA%20will%20issue%20an,there%20are%20other%20nominees%20appointed

[2] https://ourguidelines.ndis.gov.au/home/having-someone-represent-you/appointing-nominee/what-types-nominees-are-there#what-is-a-correspondence-nominee-and-what-do-they-do

[3] https://ourguidelines.ndis.gov.au/home/having-someone-represent-you/appointing-nominee/what-are-duties-nominee

[4] https://ourguidelines.ndis.gov.au/home/having-someone-represent-you/appointing-nominee/what-are-duties-nominee

[5] https://ourguidelines.ndis.gov.au/home/having-someone-represent-you/appointing-nominee/what-are-duties-nominee

[6] https://www.ndis.gov.au/understanding/families-and-carers/guardians-and-nominees-explained#guardianship-information

[7] https://www.ndis.gov.au/understanding/families-and-carers/guardians-and-nominees-explained#ndis-participants-under-18