There are distinct responsibilities and decision-making duties of a plan nominee compared to a legal guardian. A National Disability Insurance Scheme (NDIS) participant could have a different representative for each role.
It can be confusing for families and carers, but it is important to understand the differences. We have outlined the key differences below.
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plan nominee
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legal guardian
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What do they do?
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Make NDIS plan related decisions for a participant aged 18 or older. Usually, these decisions are about the preparation, review or replacement of a NDIS plan, and receiving, managing and using NDIS plan funds
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Manage certain legal and non-legal affairs of a person aged 16 or over via legal documents called Guardianship Orders. Guardians are not automatically plan nominees under the NDIS. However, if the powers of the legal guardian are comparable to the duties of the plan nominee then it's assumed the legal guardian will become the plan nominee.
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Who appoints them?
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National Disability Insurance Agency (NDIA) usually because a participant asks for a plan nominee to be appointed. They can be appointed indefinitely or for a specific term.
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The Guardianship Division of the NSW Civil & Administrative Tribunal (the Tribunal) or the Supreme Court of NSW (the Supreme Court) and usually for a set period before they are reviewed.
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In what circumstances do they get appointed?
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When the NDIA is satisfied that it is not possible for a participant to be assisted to make decisions for themselves. The plan nominee has to know what the participant would like to happen, and act in a way that supports the participant's personal and social wellbeing.
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When the Guardianship Tribunal or Supreme Court is satisfied that the person has a disability that effects their decision-making and there is a need for personal decision(s) to be made.
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Is Sylvanvale bound by their decisions?
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As a NDIS service provider, Sylvanvale should always look to implement the decisions made by participants and/or their plan nominee based on their NDIS plan. Noting that the decisions must be lawful and in the best interests of the participant while balancing duty of care. If either the participant or the service provider does not agree with a decision made by the plan nominee, they can discuss this with the Support Coordinator, a NDIS Planner or with the NDIS.
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Sylvanvale must accept decisions and/or documentation completed by a legally appointed guardian who holds legal powers covering that aspect of the participant’s life, for example ‘health and medical.’ Guardianship Orders can be reviewed if the person under the Order, or an organisation such as Sylvanvale, thinks the Order is not working in the best interests of the person, or there is no longer a need for guardianship.
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