Defining a Participants Representative or Nominee & Supported Decision Maker

People with disability have the right to make their own decisions. The United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) outlines the rights of people with disability to dignity, autonomy, decision making, and recognition of legal capacity. As the Australian Law Reform Commission (ALRC) outlines , many people with disability do not have the opportunity to make decisions. This can be because:
•    people communicate with their family or carer instead of them;
•    people with disability are not encouraged to be involved;
•    families and carers may make decisions on behalf of them, or
•    they don’t have the information to support decision making.

Since reports from NDIS, participants, families, parents and so on have suggested a current level for confusion over the role of a participants legal guardian vs their supported decision maker involved in their lives. This comes from the release by the NDIS of a policy called the Supported Decision Makers Policy. See Here https://www.ndis.gov.au/about-us/policies/supported-decision-making-policy.

A person needs to make decisions, including:
•    the nature of a person’s disability;
•    if their disability is episodic and fluctuating;
•    age;
•    culture and background;
•    identity;
•    experience;
•    a person’s preferred communication style and support needs (for example, this includes Alternative and Augmentative Communication (AAC));
•    the decision being made;
•    the people someone has in their life; and
•    the support they have available to them.

What is a Legal Representative or Nominee?

A person to be appointed as a nominee of a participant 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 or under the age of 18 years old. Appointments of nominees usually come about as a result of a participant requesting that a nominee be appointed. If there are no Legal Representative or Nominee than 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.

Some Examples -

Family member
Parent
Friend
Power of Attorney
Guardian

What is a Participants Supported Decision Maker?

A person within the care team for a participant. The NDIS will start from the position that all people need varying levels of support for decision making. In supporting people with disability to make decisions, the NDIS will seek to understand a person’s decision support needs and who is supporting that person, rather than assess a person’s capacity to make decisions. This may include by providing connections and referrals to supports, and information needed to make a decision.

Some Examples:

Plan Managers;
Support Coordinators;
advocates (for example, funded by National Disability Advocacy Program);
other decision supporters – this might be other people in the person’s life who help make decisions, including family, partners, friends, peers; and
support providers, and many others.

Your Provider Obligations

Implement a robust onboarding system that identifies and documents a participants representative or nominee & supported decision makers
Implement & regularly review Participant Onboarding/Intake Policy and Procedure
Implement a robust onboarding system that informs that participant about the different roles - discussions and participant handbook

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