Document ID: chunk:federal_register_of_legislation:F2013L01062:body:0:p8
Version: federal_register_of_legislation:F2013L01062
Segment Type: other
Provision Reference: 
Character Range: 18420–21153

request of a participant and nominees appointed on the initiative of the CEO.
    5.2 Nominees have duties to participants under the Act. These duties operate under the NDIS in 3 principal ways:
       (a) these duties, which are stated in general terms,  provide guidance as to how nominees are expected to perform in the role of nominee; and
       (b) when appointing a person as a nominee, the CEO is required to consider whether the person is willing and able to comply with these duties; and
       (c) any breach of these duties is a matter to which the CEO is to have regard in cancelling or suspending the appointment of a nominee.
                     Paragraphs 5.1 and 5.2 set out background information.

Duty to ascertain wishes, and promote personal and social wellbeing, of participant
    5.3 A nominee has a duty to:
       (a) ascertain the wishes of the participant; and
       (b) act in a manner that promotes the personal and social wellbeing of the participant.
    5.4 This duty is not breached if the nominee does an act, or refrains from doing an act, so long as:
       (a) the nominee reasonably believes that they have ascertained the wishes of the participant; and
       (b) the nominee reasonably believes that doing the act, or not doing the act, will promote the personal and social wellbeing of the participant.
                     The duty set out in paragraph 5.3 and the qualification set out in paragraph 5.4 summarise subsections 80(1), (2) and (3) of the Act.

Plan nominee to act only if participant not capable
    5.5 A plan nominee appointed on the initiative of the CEO is able to do an act on behalf of the participant only if the nominee considers that the participant is not capable of doing the act.
                     Paragraph 5.5 summarises subsection 78(5) of the Act. This is not described as a duty under the Act.
    5.6 A plan nominee appointed at the request of the participant has a duty to refrain from doing an act unless satisfied that:
       (a) it is not possible for the participant to do, or to be supported to do, the act himself or herself; or
       (b) it is possible for the participant to do the act himself or herself, but the participant does not want to do the act himself or herself.
    5.7 This is not intended to affect any obligations or restrictions that impact on a plan nominee and which apply under State or Territory law (including obligations or restrictions that impact on them in their capacity as a court-appointed decision-maker or a participant-appointed decision-maker).
                     See also section 207 of the Act, which deals with the concurrent operation of State and Territory laws with the Act.

Duty to consult
    5.8 A