Supporting a participant with an OPA guardian: Information for support coordinators

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Contents

Key points

Essentials for support coordinators

Guardianship processes for NDIS participants

Useful information and resources

Information needed for a guardian’s decision

Key points:

• A guardian makes decisions on behalf of the represented person who is the NDIS participant in line with the order and the Guardianship and Administration Act 2019

• The Public Advocate (or delegated guardian) does not become the participant’s plan nominee.

• The guardian does not find or source service providers or accommodation options for represented person (participant).

• The support coordinator is the main contact for the represented person’s (participant) service providers.

• The support coordinator must talk with represented persons (participant) to understand their views and preferences.

• The support coordinator must provide information that shows they have explored service options.

Essentials for support coordinators

Check the VCAT guardianship order

The guardian’s authority comes from the VCAT order. Before contacting OPA about a decision for a participant, support coordinators should check that

• the guardianship order is current and that the Public Advocate has been appointed guardian

• the order lists the relevant authorities to empower the guardian to make decisions about the person’s NDIS funding or services.

For example, if the order only gives the guardian power to make medical treatment decisions, the guardian cannot make decisions about NDIS services.

The VCAT order gives the guardian power to make decisions on behalf of the represented person about specified personal matters, such as but not limited to:

• where the represented person lives (accommodation)
• the support services that are provided to the represented person, including services provided under the National Disability Insurance Scheme (e.g. who provides services, the timing and nature of services, funding arrangements for services)
• the exercise of any rights or actions that are available to the represented person, under the National Disability Insurance Scheme Act 2013
• the power to start and defend legal proceedings, on behalf of the represented person about the support services that are provided to them

The support coordinator role does not change if there is a guardian

The support coordinator must perform their usual role in implementing the NDIS plan, as they would with any other NDIS participant. This includes identifying service options and helping the participant connect with funded and mainstream services.

Support coordinators must provide information needed for a guardian’s decision when seeking a decision from a guardian.

If there are concerns about completing the role within the allocated support coordinator hours, this must be raised with the guardian as soon as possible. For example, if support coordination funding is nearly exhausted, the guardian should be informed so the represented person (participant) is not left without necessary supports.

Provide information so guardians can confirm ‘My Providers’

OPA guardians cannot access NDIS systems, including the PACE system and provider portal.

Support coordinators should understand the policy and system requirements for confirming ‘My Providers’ for NDIS participants.

Support coordinators should provide accurate information to guardians about:

• which providers need to be confirmed under NDIS requirements

• the information the guardian will need in order to confirm those services, for example their provider ID, ABN/ACN and category level

• whether there is a genuine barrier to service delivery.

Provide information so guardians can make decisions

The support coordinator is expected to have expertise in NDIS funding and services. When asking a guardian to make a decision, the support coordinator must provide enough information for the guardian to properly consider the options.

It is not enough to provide only the names of providers. Information must include matters such as:

• suitability, including experience, qualifications, registration status and other relevant factors

• capacity, including waitlist times and location

Refer to information needed for a guardian’s decision.

Submit OPA service deeds

Service agreements often include matters that are outside a guardian’s authority.

OPA guardians are generally unable to sign provider agreements. Instead, OPA uses a service deed process for:

• support coordination services

• plan management services

• Specialist Disability Accommodation (SDA)

• miscellaneous services, which cover all other service types.

The services listed in a Support Coordination Deed or Miscellaneous Services Deed can be updated during the term of the deed by completing a Deed Amendment Schedule.

Service providers must not submit service deeds before a guardian has communicated a decision.

The support coordinator must review service deeds before the guardian signs them.

Once satisfied with the contents, the guardian will review and co-sign the deed as soon as practicable.

Escalate NDIS issues or requests

Support coordinators should:

• monitor relevant NDIS timeframes, including Participant Service Guarantee timelines.

• follow up on pending requests or actions and actions with the NIDA

• help ensure changes in the participant’s circumstances are reported to the NIDA

• report any new or increased risks, affecting the participant.

OPA has an escalation pathway. This can only be used in limited situations where:

• the participant is at risk

• the support coordinator and guardian have made reasonable attempts to escalate the issue with the NDIA.

An OPA guardian may ask the support coordinator for information, such as NDIA receipt numbers to support an escalation request.

Report safeguarding concerns

If a support coordinator identifies or is told about possible abuse, neglect or another serious issue, they must follow their organisation’s policies and procedures and meet all legal reporting requirements.

This may include reporting to:

• the NDIA

• the NDIS Quality and Safeguards Commission

• the Victorian Disability Worker Commission (VDWC)

• Victoria Police.

Support coordinators must also inform the guardian of the abuse concerns identified. However, telling the guardian about a concern does not remove or change any obligations the support coordinator or their employer has as an NDIS service provider.

Less restrictive alternatives to guardianship

Guardianship is not intended to be a permanent arrangement. It should only remain in place for as long as it is needed to address the decision-making issue that led to the appointment of a guardian. Continuing guardianship when it is no longer needed unnecessarily restricts a person's rights and autonomy.

Once the decisions that required guardianship have been made, the guardian must consider whether the order is still needed. If it is no longer needed, steps should be taken to have the guardianship order revoked.

At this point, the guardian will work with the support coordinator and other important people in the person's life to explore less restrictive options. This may include identifying informal supports, strengthening supported decision-making arrangements, and planning how future decisions can be made without a guardian.

Guardianship should not continue simply because there may be decisions to make in the future or administrative tasks such as signing service agreements, service deeds or other documents still need to occur. The possibility of future decisions does not, on its own, justify an ongoing guardianship order.

The NDIS Act provides mechanisms for the NDIA to engage with and respond to people who require support with decision-making.

Support coordinators should work with the person, their supporters, the NDIA and relevant service providers to identify and implement the least restrictive option that promotes the person's independence, will and preferences.

Guardianship processes for NDIS participants

The guardian’s role

The guardian’s role is different to support coordination and case management. The Public Advocate (or delegated guardian) does not become the participant’s plan nominee.

 The guardian does not research or source service options. 

The guardian’s involvement in communication and meetings

Guardians should not be included in day-to-day email correspondence.

Support coordinators should summarise the relevant information including updates from service providers and give this to the guardian.

OPA guardians may attend care team meetings, court appearances and other professional meetings where their attendance is required.

Attendance is considered on a case-by-case basis.

Whether a guardian attends will depend on the purpose of the meeting, the issues being discussed and the guardian's authority under the VCAT order.

Decision making

Guardians must make decisions in line with the Guardianship and Administration Act 2019. 

Receiving complete information from support coordinators helps the guardian consider all relevant information including:

• whether the supports align with the person’s will and preferences

• the person’s rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic).

Support coordinators should prepare and provide the information early to support timely decision making.

Guardians will generally need at least 21 days to consider, make and communicate a decision.

If a decision is urgent, the support coordinator must tell the guardian. This includes situations where there is a risk to the represented person (participant).

After a decision is made

The guardian will communicate the guardianship decision to:

• the represented person

• the support coordinator

• any other relevant parties, including the support coordinator.

Decisions to change support coordination providers

A guardian may decide to change the person’s support coordination service provider. In this situation, the support coordinator may need to identify options for other support coordination services.

A change may occur for reasons such as:

• the participant’s preference

• service quality

• service performance.

The period of notice will be determined by the terms outlined in the relevant service deed.

Support coordinators are expected to:

• complete a handover in line with NDIS guidance

• avoid gaps in service

• support a smooth transition between services.

Where support coordination changes, the handover report must be provided to:

• the new support coordinator

• the guardian.
  
  

Working with plan nominees

The guardian will work alongside the plan nominee.

A plan nominee is a formal appointment under the National Disability Insurance Scheme Act 2013 (Cth).

In some cases, the NDIA may appoint a plan nominee, such as a family member or friend, who helps make decisions for the participant.

A plan nominee has responsibilities to:

• the participant, including a duty to consult with relevant people, including any court-appointed decision maker

• the NDIA.

If a support coordinator is concerned that a plan nominee not meeting their responsibilities, they should raise the concern with the NDIA. An OPA guardian cannot remove a NDIS plan nominee.

Useful information and resources

• NDIS decision-making (with flowchart)

• OPA Guide to NDIS decision-making

• NDIS Deeds - Office of the Public Advocate

• Role of a Guardian

• Video: Understanding the Guardianship and Administration Act 2019 - Office of the Public Advocate

Information needed for a guardian’s decision

When asking a guardian to decide whether a service should be engaged for a represented person, the support coordinator must provide the information listed in the table below.