National Disability Insurance Scheme (Nominees) Rules 2013

The Rules directly affect three primary cohorts. First, NDIS participants who, despite the presumption of capacity, may require nominee assistance. The Rules emphasise that most participants will not need nominees (rule 2.1) and that appointments should occur only when support and capacity-building cannot enable self-decision-making (rule 3.3). Participants retain significant procedural rights: their wishes must be consulted and given weight even in CEO-initiated appointments (rules 3.14 and 4.6), they may request appointment or cancellation (rules 3.12 and 6.2), and their views on term length must be considered (rule 4.11).

Second, prospective and appointed nominees—whether individuals (family members, carers, friends) or bodies corporate. The Rules impose rigorous eligibility filters and ongoing duties. Nominees must be over 18, independent of the Agency, willing and able to comply with the extensive duties in Part 5, free of disqualifying conflicts, and culturally competent (rules 4.4, 4.7 and 4.8). Once appointed they become subject to statutory duties enforceable through suspension or cancellation. Corporate nominees face additional transparency obligations regarding the identification and notification of responsible officers (rules 4.13 and 5.14).

Third, the CEO of the National Disability Insurance Agency (NDIA). The Rules confer substantial discretionary power on the CEO while simultaneously constraining that power through mandatory considerations, consultation requirements and procedural safeguards. The CEO must consult existing guardians or attorneys before appointment (rule 4.12), request criminal history and conflict disclosures (rule 4.8(e)), consult in writing with court-appointed or participant-appointed decision-makers (rule 4.12), and apply the detailed weighing exercise in rule 4.8. The CEO’s decisions on appointment, limitation of authority, term, suspension and cancellation are all guided—and in some cases strictly limited—by the principles and factors enumerated throughout the instrument.

Carers, informal supporters and existing decision-makers (both court-appointed and participant-appointed) occupy an important ancillary position. Their views must be sought and weighed at multiple decision points (rules 3.14, 4.6, 4.8, 4.11 and 6.5), and nominees are under a positive duty to consult them (rule 5.8). State and Territory guardians, attorneys and tribunals are indirectly affected through the recognition given to their appointments and the express preservation of concurrent operation of State and Territory laws (rule 5.7 and section 207 of the Act, referenced in the Rules).

The Rules create an asymmetrical structure in which nominees bear positive duties while participants retain underlying rights. The cardinal duty appears in rule 5.3: a nominee must ascertain the participant’s wishes and act in a manner that promotes the participant’s personal and social wellbeing. Rule 5.4 provides a reasonableness defence that protects honest belief both as to the content of the participant’s wishes and as to the wellbeing-promoting character of the chosen act or omission. This formulation mirrors but does not replicate fiduciary standards; it is grounded in the NDIS principles rather than equitable doctrine.

Plan nominees face a capacity-based restriction. Where appointed on the CEO’s initiative, they may act only if they consider the participant incapable (rule 5.5, reflecting subsection 78(5) of the Act). Where appointed at the participant’s request, the nominee must not act unless satisfied that the participant cannot be supported to act or does not wish to act personally (rule 5.6). The Rules expressly state that this does not disturb obligations arising under State or Territory law, preserving the primacy of guardianship and enduring power of attorney regimes where applicable (rule 5.7).

Consultation duties are multilayered. Rule 5.8 requires consultation with any court-appointed decision-maker, participant-appointed decision-maker, and any person assisting with day-to-day activities or decisions. Where multiple plan nominees exist, each must consult the others before acting (rule 5.9). The duty to develop capacity (rule 5.10) is expressed as an obligation to apply “best endeavours” to enable the participant to make their own decisions to the point where a nominee is no longer necessary. The Agency is expected to assist nominees in discharging this duty, although the Rules do not create a justiciable obligation on the Agency itself.

Conflict-of-interest obligations are both preventive and reactive. Rule 5.12 requires nominees to avoid or manage conflicts and to inform the CEO as soon as any conflict arises. A non-exhaustive example states that a conflict exists where the nominee is professionally or administratively responsible for providing paid services to the participant (rule 5.13). Corporate nominees must maintain a designated responsible officer or employee and notify the CEO of any change in that designation (rule 5.14).

Participants’ rights are embedded throughout. They include the right to have their wishes treated as presumptively decisive (rules 3.12, 4.6 and 6.5(d)), the right to request both appointment and cancellation (rules 3.12 and 6.2), and the right to have supportive relationships preserved rather than supplanted (rule 4.8(c)). The Rules repeatedly require the CEO to have regard to the participant’s cultural and linguistic circumstances, gender, and existing connections (rules 1.2, 4.8(iv) and 4.8(v)).

The Rules do not create criminal offences or civil penalty provisions. Enforcement operates exclusively through administrative mechanisms centred on suspension and cancellation of appointment. Rule 6.2 imposes mandatory cancellation where a participant who requested the nominee subsequently requests cancellation, or where the nominee themselves withdraws. In all other cases the CEO possesses discretion.

Rule 6.4 authorises (but does not compel) cancellation or suspension where the nominee’s ability to act is compromised or where the CEO reasonably believes the nominee has caused or is likely to cause physical, mental or financial harm. When exercising that discretion the CEO must have regard to a non-exhaustive list of matters including any breach of the Part 5 duties, previous conduct, plan review outcomes, participant and carer views, likely impact of removal, relevant criminal convictions, and whether a nominee remains necessary having regard to the rule 3.14(b) criteria (rule 6.5).

Breach of the duties in Part 5 is therefore not sanctioned by fine or imprisonment but constitutes a mandatory relevant consideration in any discretionary cancellation or suspension decision. The Rules cross-reference the detailed procedural requirements contained in sections 89, 90 and 91 of the Act, which include notice obligations, opportunity to be heard, and review rights. Consequently, enforcement is both protective of participants and procedurally constrained to prevent arbitrary removal of nominees who may themselves be vulnerable or acting in good faith.

The Rules sit within a deliberately concurrent regime. Rule 5.7 expressly states that the duties imposed on plan nominees are not intended to affect obligations or restrictions arising under State or Territory law, including those arising in the capacity of court-appointed or participant-appointed decision-maker. The instrument references section 207 of the Act, which deals with concurrent operation of State and Territory laws.

Extensive recognition is given to existing decision-making regimes. The definitions of “court-appointed decision-maker” and “participant-appointed decision-maker” in rule 7.4 capture guardians, attorneys, enduring guardians and persons appointed by tribunals whose powers are relevant to nominee functions. Where such a person exists, the CEO must consult them before appointing a nominee (rule 4.12), must have regard to their views (rules 4.6 and 4.8), and must apply a presumption that the existing decision-maker should be appointed as nominee where their powers are comparable (rule 4.8(a)).

The interaction is not one of subordination but of complementarity. The Rules treat State and Territory appointments as prima facie evidence that a nominee may be unnecessary, yet permit an NDIS-specific nominee where the existing appointment does not fully address NDIS plan and funding decisions. Corporate nominees are expressly contemplated, allowing disability service providers or advocacy organisations to act provided conflicts are managed and responsible officers are identified.

The Acts Interpretation Act 1901 and Legislative Instruments Act 2003 (now Legislation Act 2003) supply the interpretive framework, as confirmed by rule 7.3. Definitions in the NDIS Act—participant, CEO, Agency, plan nominee, correspondence nominee—are imported without alteration.

Although the version reproduced is the original 2013 instrument, the structure reveals deliberate policy choices made at the Scheme’s inception. The emphasis on supported decision-making rather than substituted decision-making reflected the National Disability Insurance Scheme’s foundational philosophy articulated in rule 1.2, which reproduces the Act’s objects and principles. The creation of two distinct nominee types responded to stakeholder concerns that a single broad power of attorney-style appointment could inadvertently remove participant agency in non-financial matters.

The detailed factors in rule 4.8 were included to provide transparency and accountability for CEO decision-making, addressing fears that an under-resourced Agency might default to family members without adequate scrutiny. The capacity-building duty in rule 5.10 and the expectation that the Agency would assist nominees were designed to prevent nominees becoming permanent substitutes, aligning with the Scheme’s long-term goal of maximising independence. The mandatory cancellation grounds in rule 6.2 responded to the risk that participants might feel locked into nominee arrangements once appointed.

These design features were not accidental but represented a conscious attempt to translate the CRPD-inspired principles of the Act into administrative practice while preserving flexibility for individual circumstances.

The source text contains no judicial decisions; it is subordinate legislation rather than case law. However, the Rules themselves anticipate points of tension. The “rare and exceptional” threshold for CEO-initiated appointments (rule 3.4) has the potential to generate dispute where participants or advocates contend that support should have been provided instead of a nominee. The reasonableness safe-harbour in rule 5.4 could become contentious in cancellation proceedings where the CEO and nominee disagree on whether a belief about the participant’s wishes or wellbeing was reasonably held.

The interaction with State and Territory guardianship regimes has produced practical complexity not resolved on the face of the Rules. Questions arise as to whether an NDIS plan nominee can override a guardian’s decision on matters outside the plan, or whether a guardian’s broader powers prevail. Rule 5.7 preserves State law but does not prescribe a hierarchy, leaving scope for concurrent jurisdiction disputes.

Conflict-of-interest provisions have attracted attention where service providers act as nominees. Rule 5.13’s example of a paid service provider creating a conflict highlights the tension between the NDIS’s market-based support delivery and the desire for trusted advocates to hold nominee roles. Corporate nominees’ notification obligations under rule 5.14 were included precisely to manage staff turnover risks in large organisations.

The absence of external merits review of certain CEO decisions within the Rules themselves (though review under the Act may exist) has been a point of commentary among practitioners, who note that the multiplicity of mandatory considerations creates broad discretion that is difficult to challenge on traditional Wednesbury grounds.

Most practitioners assume that once a participant requests a nominee the CEO’s role is purely mechanical. Rule 3.13(b) and (c) impose an obligation to investigate possible undue influence or conflict even where the participant has made a clear request; failure to document that consideration can expose the decision to legal challenge.

The safe-harbour in rule 5.4 is narrower than it first appears. The nominee must hold two distinct reasonable beliefs—one about the content of the participant’s wishes and one about the wellbeing consequences of the act or omission. A nominee who relies on outdated wishes or fails to update their understanding after new information surfaces will fall outside the protection.

Corporate nominees frequently overlook rule 4.13 and rule 5.14. The requirement to identify a specific officer or employee “closely involved” in nominee functions and to notify changes is not a formality; breach constitutes a breach of duty that must be weighed in any cancellation decision under rule 6.5(a).

The duty to develop capacity (rule 5.10) is not aspirational. The phrase “best endeavours” imports an objective standard measured against the resources and opportunities available. Nominees who fail to document capacity-building steps or who do not avail themselves of Agency assistance risk findings that they have not discharged the duty.

Rule 6.5(g) creates a circularity that many miss: when deciding whether to cancel a nominee the CEO must consider whether the participant still needs a nominee by applying the very criteria in rule 3.14(b) that justified the original appointment. This requires fresh evidence rather than reliance on historical assessment.

The Rules apply equally to nominees appointed at participant request and those appointed on CEO initiative, yet the duties differ subtly (contrast rules 5.5 and 5.6). Advisers must carefully check the instrument of appointment before advising on the scope of authority.

Finally, the interpretive note in rule 7.2 is critical: the boxed summaries of the Act are not operative. Practitioners who rely on the paraphrases in rules 3.6–3.10 or 4.6 without consulting the primary Act provisions risk misstating the precise legal position, particularly regarding the interaction between nominee powers and the participant’s residual rights under sections 78 and 79 of the Act.

Compliance begins with documentation. The CEO (or delegate) must maintain a file demonstrating that every mandatory consideration in rules 3.14, 4.6, 4.7, 4.8 and 4.11 has been addressed. Where a participant’s wishes are expressed non-verbally or through a third party, contemporaneous notes or witness statements should be retained. For corporate nominees, the designated officer or employee must be identified in writing at appointment and any change notified to the CEO within a reasonable period.

Nominees should adopt a “wishes first” decision-making template. Before every significant act the nominee should record: (1) the steps taken to ascertain current wishes, (2) the belief formed about those wishes, (3) the wellbeing assessment, and (4) consultation undertaken. This contemporaneous record will be the primary evidence if the CEO later considers suspension or cancellation under rule 6.5.

Capacity-building plans should be explicit. A nominee should, in consultation with the participant’s plan, set measurable objectives for reducing reliance on the nominee role and request Agency assistance where specialised supports (communication technology, decision-making coaching) are required. Failure to do so breaches rule 5.10.

Conflicts must be managed proactively. Where a potential conflict exists, the nominee should disclose it immediately to the CEO in writing, propose a management strategy (for example, independent oversight of funding decisions), and obtain the CEO’s written approval. Corporate nominees must maintain an internal register of responsible officers and ensure that register is available for CEO audit.

Where multiple nominees exist, a written protocol should govern consultation and dispute resolution to satisfy rule 5.9. Similarly, a nominee should maintain a consultation log recording contacts with guardians, attorneys and informal supporters.

Participants or their advocates seeking to remove a nominee should first request cancellation in writing. If the nominee was participant-requested, cancellation is mandatory under rule 6.2(a). If CEO-initiated, the participant should provide evidence addressing the rule 6.5 factors, particularly changed circumstances or breach of duty.

All parties should keep the Act open alongside the Rules. Because the Rules summarise rather than replace the primary provisions, cross-checking against sections 78–93 of the Act is essential for accuracy on issues such as the exact scope of plan nominee powers or the procedural requirements for suspension.

Regular review is built into the system. Where an appointment is for a specified term, the CEO should commence the review process well before expiry, re-applying the full suite of rule 4.8 criteria and considering whether capacity has developed to the point that the nominee is no longer necessary. This disciplined, evidence-based approach satisfies both the letter and the protective spirit of the National Disability Insurance Scheme (Nominees) Rules 2013.