The shift of focus under the National Disability Insurance Scheme (NDIS) to greater choice and control, pursuit of goals and individualised services represents a positive change.
However, it may also present some challenges for high-support people with a cognitive impairment affecting their decision-making ability. Some people will need support, assistance and advocacy to develop their NDIS plans and pursue their goals, so it's important to consider whether a participant will need a formal substitute decision-maker to make the transition to the NDIS.
This is where the Office of the Public Advocate (OPA) becomes involved. A Public Advocate can be appointed to act as guardian of last resort where there is no other person appropriate to act as guardian. If the person with disability cannot confirm information themselves, then a representative can do so for them.
Planning and supports – is a guardianship order needed?
Service providers are unable to make decisions about NDIS support plans participants due to a conflict of interest. If the participant requires significant support and someone to make decisions about their NDIS plan, but they have no appropriate family, friends or advocate to help, a guardianship order should be considered. To consider if this is necessary, you could ask the following questions:
- Do important lifestyle and accommodation decisions need to be made? For example, deciding whether a change in accommodation, or other services, is necessary or would better meet the participant's needs?
- Are there concerns the participant's needs and wishes won't be expressed?
- Is there another person who will ensure support needs are met through their plan?
Role of the Public Advocate as guardian
The primary role of the Public Advocate as guardian is to be a substitute decision-maker, including decisions around NDIS support. This means the guardian "stands in the shoes" of the participant and makes decisions or gives consent as if the person were doing so themselves. Guardians must follow certain principles when making substitute decisions, like determining the person's past and present wishes and choosing the best options that make sure they are properly looked after.
However, Public Advocates are not care providers, case managers or coordinators of supports. Coordination of supports is a service that can be funded under the NDIS if the NDIA deems it reasonable and necessary. If you think you require coordination of supports, make sure you mention it in your planning conversation.
*Information sourced from Office of the Public Advocate.