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Chapter 12 Section F: Decision-making and the NDIS

Overview

Every day, we make a countless number of decisions. Some decisions have been thought through with logic, others may be impulsive, made instinctively and guided by our emotions and preferences. Through the decisions we make, we can exert control over our own lives, and experience new things.

Often people will exercise their right to make independent decisions, especially when they feel they do not require help to make such a decision. Even when a person is well informed, they may still make use of the support and advice from trusted people or people with specific expertise that are well placed to assist them in making a specific decision.

However, some people may need a higher level of support to make a specific decision, and the degree of support may vary according to the complexity of the decision. People living with mental health and co-existing conditions may experience difficulties making decisions for a number of reasons, including: how well they are at a particular time, the impact of their condition on their thinking, the side-effects of medications prescribed, the time of day, as well as the stress that can arise from the necessity to make a decision in itself.

People may also experience difficulties in making decisions because in the past others have made decisions on their behalf. Past experience of failure or imposed negative beliefs of others may have affected their sense of confidence and they may feel unwilling to make a decision alone or take the risk.

Some people may also be subject to an involuntary treatment order, a Guardianship or Financial Management Order, which all have consequences on their right to independently make decisions in a number of areas. Whilst such orders are intended to support the participation of the person in decision-making about things that affect their lives, in reality people who are appointed as a person’s Guardian or Financial Manager will exercise authority over the person in those circumstances.

There are some different approaches to decision-making, and they often vary in different services and settings. Decision-making approaches range from independent decision-making through to formal arrangements such as Guardianship, with a number of support options occurring in between. Different levels of support may be required at different points in people’s lives, depending on the person’s current life circumstance and the network of supports available to them.

Chapter 5 of this this manual provides an overview of Guardianship, Financial Management, Power of Attorney and Advanced Care Directives.

This chapter will provide information about:

  • Decision-making approaches ;
  • Guardianship orders and the NDIS;
  • Financial management orders and the NDIS;
  • NDIA appointed nominees ;
  • Can I have an advocate ?
  • The role of carers as advocates.

12F.1: Decision-making approaches

12F.1.1: Supported decision-making

A person’s support worker may assist them through ‘supported decision-making’, which involves a range of practices where a person with a disability is assisted to make or implement their own decisions.

Supported decision-making may include formal processes, such as written agreement that includes the decisions made and the parties involved. It can also take place informally where family members, friends, carers and paid workers may all play a role in supporting a person to make decisions about the things that are important to them. Supporters should remain unbiased in their assistance and not impose their personal preferences for a particular outcome.

Supported decision-making helps maximise independence and dignity. This type of decision-making supports the process of building skills and assisting a person to make their own decisions by identifying the goals they want to pursue, make choices about their life and exercise control over the things that are important to them.

These principles provide the basis for supported decision-making practice:

  • assume everyone has the capacity to make decisions, unless proved otherwise;
  • a person’s capacity should be considered in relation to a specific decision;
  • support to make decisions needs to be tailored to the person’s needs;
  • everyone has preferences which should be used as the ‘building blocks’ of decisions;
  • people have the right to make decisions that others may not agree with;
  • people have the right to learn from experience;
  • people have the right to change their minds;
  • every effort should be made to support people to make their decisions; and
  • everyone has the right to be involved in decision making, including substitute decision making.

Supported decision-making is an approach informed by recovery-oriented practice, which aims to maximise choice and control – which are objectives underpinning NDIS operations. Supported decision-making emphasises the centrality of a participant’s right to directing and making decisions about what is important to them in leading a good life, and supports people to build the skills and capacity to better participate in the community and in employment. This approach best allows participants to exercise choice and control over their NDIS funded package if they are unable to represent themselves independently in the development of their plan.

12F.1.2: Shared decision-making

Shared decision-making is when an individual actively seeks and uses the opinions of a support person with whom they generally have a formal relationship. The support person and the individual work together to weigh up the benefits and risks involved and choose the best outcome for the individual.

While this approach can be very helpful, shared decision-making can lead to ‘proxy decision-making’, when the support person makes the decision for the individual. To ensure that proxy decision-making does not happen, the individual with the disability should retain choice and control in the decision-making process.

12F.1.3: Substitute decision-making

A substitute decision-maker is a person who has the power to make a decision for a person who is unable to make the decision themselves. The substitute decision-maker makes a decision from that person’s perspective and wherever possible, and their decisions should be informed by the person’s will and preferences. Generally, the substitute decision-maker’s decision has the same legal effect as if the person had capacity and made the decision themselves.

There are different types of substitute decision-makers depending on the type of decision.

A Guardian can make healthcare, lifestyle and medical decisions on someone’s behalf. A Guardian can be a person or a government body. For more information about Guardianship, click here.

A Financial Manager can make legal and financial decisions on someone’s behalf. A Financial Manager can be a person or a government body. For more information about Financial Manager, click here.

12F.2: Guardianship orders and the NDIS

A Guardianship Order can be made by the NSW Civil and Administrative Tribunal (‘the Tribunal’) for a person who cannot is totally or partially incapable of making important life decisions because of their disability. The Tribunal will consider whether or not there is a need for a Guardianship Order, or whether services can be provided without a legal order.

If it decides to make a Guardianship Order, the Tribunal can appoint a friend or family member as the guardian (known as a ‘private guardian’) or a public body called the Public Guardian. The Public Guardian will only be appointed in circumstances where a private guardian can be appointed. Guardians are given “functions”, or areas of decision-making, in the order. The most common functions are to make decisions about accommodation, health care, medical and dental consent and services.

A Guardian may have a decision-making role in respect of restrictive practices. Restrictive practices should only be used in the context of a holistic response to the person’s needs, and in particular to the factors that may be causing the behaviour that is an issue. If a Guardian has a restrictive practices function, it gives the Guardian the authority to consent (or to refuse consent) to the use of restrictive practices aimed at managing a person’s behaviour. For more information, please see the NCAT Fact Sheet.

The Guardian is the substitute decision-maker and they are legally responsible for certain decisions and makes them in the best interests of the person. Wherever possible, their decisions should be informed by the person’s will and preferences.

An Enduring Guardian can make healthcare, lifestyle and medical decisions for a person with disability even if they become unable to make their own decisions. If you have a private or Enduring Guardian, they should contact the National Disability Insurance Agency (NDIA) to make them aware that they are your legally appointed Guardian. Service providers and your Local Area Coordinator should also be informed of who your legally appointed Guardian is and the extent of their decision making authority.

When decisions need to be made, the NDIA works with the person or body who has Guardianship responsibility in the same way that they would work with parents and carers of NDIS participants who are under eighteen (18). However, it is understood that NDIA planners will support participants as much as possible to exercise choice and control over their supports and providers.

Guardians will assist developing a NDIS plan, helping to identify participant’s goals, and providing consent to employ or terminate services. They will advocate for the participant to ensure that the NDIA is aware of the current needs of the person, their cultural and lifestyle preferences and any critical unmet needs or gaps in service delivery are addressed.

Guardians are allowed to contact the NDIA on your behalf if you are unable to make contact yourself and they also have the ability to make an NDIS access request on your behalf.

Follow this link for the overview of Guardianship.

Follow this link for information about Guardians and the NDIS.

12F.3: Financial management orders and the NDIS

The NSW Civil and Administrative Tribunal can make a Financial Management Order for someone in circumstances where they are not capable of managing their affairs, there is a need for another person to manage their affairs, and if it is in the person’s best interests that the order be made. The Tribunal will consider a person’s capacity for self-management at the time as well as into the future.

If the Tribunal decides to exercise the discretion to make a Financial Management Order, it can appoint a family member or friend, as the person’s financial manager (called the ‘private manager’). The Tribunal can appoint the NSW Trustee and Guardian (NSWTG) as manager. They are a government body. The Financial Manager is a substitute decision-maker who can make decisions about someone’s financial, property and legal matters.

If you are an NDIS participant and you are currently under a Financial Management Order, your NDIS funding is not managed by your Financial Manager as it is not classified as being part of your estate. However, your financial manager should know about what is included in your plan as there may be associated costs that you will need to pay for. Your NDIS plan will either be managed by a plan manager or the NDIA . The only aspect of your plan which your Financial Manager can supervise is if a there is a transport funding component to your NDIS plan.

Once your plan has been prepared, the NDIA should provide the NSWTG with a copy of your plan. It is recommended that if you have a Financial Management Order, that a Support Coordinator should be included in your package.

If you urgently require a service that is not yet covered by your NDIS funding or you have used all your transport funding and you still need transport, your Financial Manager is able to pay for these supports from your own funds if they are affordable and approved by the NSWTG.

For an overview and more information about financial management orders, click here.

12F.4: NDIA appointed nominees

The NDIS aims to support participants to maximise choice and control in decision-making, and holds the presumption that persons over eighteen (18) years have the full capacity to decide what is in their best interests; and can make decisions regarding the supports they need and how they use them.

However, where a person is considered to lack the capacity to make such decisions and the participant is not currently under a formal Guardianship order, a nominee may be appointed by the National Disability Insurance Agency (NDIA). Nominees have a duty to help you meet your goals and aspirations and help make decisions that will ensure these aspirations will be achieved and maximise your overall wellbeing. It is rare for the NDIA to find it necessary to appoint a nominee for a participant who has not requested one themselves.

The decision to appoint or not to appoint a nominee can be appealed to the Administrative Appeals Tribunal (AAT). The process of deciding to appoint a nominee is about what is considered to be in the best interest of the participant, and this is handled individually for each participant. The NDIA will take into account your existing informal supports and networks when deciding who should be appointed as your nominee.

If you are currently under Guardianship , the assumption with the NDIA is that your Guardian will be your appointed nominee.

There are two types of nominees: a correspondence nominee or a plan nominee, with one individual able to perform both roles.

A correspondence nominee can undertake all activities that a participant would undertake, except for:

  • the preparation, review or replacement of the participant’s plan; and/or
  • management of the funding for supports in the participant’s plan.

A plan nominee can undertake all activities that a participant would undertake under the NDIS including:

  • the preparation, review or replacement of the participant’s plan; and/or
  • management of the funding for supports in the participant’s plan.

More than one person can be appointed a plan nominee.

When deciding who should be appointed as a nominee for an NDIS participant, the NDIA must take into account the following factors:

  • a person aged under eighteen (18) years cannot be appointed as a nominee;
  • the NDIA cannot be an appointed nominee;
  • an employee of the NDIA or a registered NDIS provider cannot be appointed as a nominee;
  • the NDIA must take into consideration the expressed wishes of the participant regarding the appointment of a nominee. These wishes could be expressed non-verbally or through a third party, such as a support worker or family member; and
  • the NDIA must obtain written consent from the person appointed nominee before they are assigned to the role.

If a participant has requested the appointment of a nominee and the participant then requests the NDIA cancel the appointment, the NDIA must cancel the nominee appointment as soon as possible. If the participant was appointed a nominee on the initiative of the NDIS and requests to cancel the appointment, the NDIA must make a decision within fourteen (14) days of receiving the request.

Follow this link for more information about nominees and the NDIS.

12F.5: Can I have an advocate?

You may want someone to represent you or support you to speak up for yourself and make sure your wishes and needs are being prioritised. This person can be a family member, a friend, a carer, a support worker, or someone who you have employed to help coordinate or engage with services on your behalf. These people can be referred to as your advocate. They can participate in phone calls and meetings with you and can speak, write or act on your behalf.

The NDIA do not provide advocacy support services as part of a package or generalist participant services. There are mainstream government provided programs that do provide advocacy support. One of these programs is the National Disability Advocacy Program (NDAP). NDAP can tell you about any programs or peer support services in your local area that can assist with advocacy or help you to develop self-advocacy skills to identify and best express your needs and wants.

To find where you can find a service to support your advocacy needs, click here.

You can also find more information by clicking here.

12F.5.1: The role of carers as advocates

Carers and family members can play a significant role in your NDIS journey, if you request it. Carers and family members can support your decision-making about ongoing needs, help with goal setting, assessment and the planning process. You may ask a support person such as a family member, friend, or support worker to help you make an access request. You will need to provide permission for your support person to make an access request on your behalf.

If you are under eighteen (18) years, you are legally classified as a child under the National Disability Insurance Scheme Act 2013. This means that your parent or Guardian will be required to make decisions on your behalf. However, it is understood that a child’s capacity for making decisions will evolve over time, and the NDIA will take into account whether a young person can represent themselves and exercise choice and control.

Carers should be treated with dignity and respect in regards to their relationship with the participant, and considered partners in care. NDIS planners should consider what informal supports the person has available to them. The supportive relationships of people with disability should be recognised. Planners have to consider what is reasonable to expect carers to provide. One goal of the NDIS is to enable carers to work.

Carers can attend the planning meeting, make a carer statement about how their caring role impacts them and even talk to the planner separately.

Carers can’t get a package but are expected to benefit from the participant’s plan. For example, the plan may also include limited supports to support the carer. Carers will be able to access information, linkages and capacity building supports.

Updated November 25, 2020