Under the NDIS, participants aged less than 18 years are considered children. [s9]
Self-representation by the child may be permitted if it is considered to be appropriate in the circumstances and the child is thought to be capable of making their own decisions.
A child representative will, however, ordinarily be appointed to make decisions and undertake acts on behalf of the child. The Agency may appoint, for this purpose, a person with parental responsibility or a person without parental responsibility. [s74] A child representative has certain duties and is authorised to take particular actions.
The Agency will make a decision that a child does not require representation if [s74(5)]:
- the Agency is satisfied that the child is capable of making decisions for himself or herself; and
- it is appropriate in the circumstances for the Agency to refrain from making an appointment.
Capable of making decisions
When determining whether the child is capable of making decisions, the Agency is to consult with the child’s guardian and any other person with parental responsibility and consider each of the following [Part 5.2 Rules-Children].
- Whether the child is able to understand the kind of information relevant to decisions that need to be made under the NDIS.
- Whether the child is able to use information of that kind when making decisions.
- Whether the child is able to understand the consequences of decisions that need to be made under the NDIS.
- Whether the child is able to communicate decisions in some way.
- Whether the child whether there are people in the child’s life who can support them to make their own decisions.
Appropriate in the circumstances
The Agency will decide whether it is appropriate not to appoint a representative to the child based upon the following considerations. [Part 5.3 Rules-Children]:
- Whether there are other people in the child’s life who would be willing and able to assist them in carrying out actions and making decisions under the NDIS.
- The need to preserve existing family relationships.
- Any existing arrangements in place under Commonwealth, State and Territory schemes.
The Agency will also consult with the child’s guardian and any other person with parental responsibility before making a determination. [Part 5.2(a) Rules-Children]
If the Agency decides that the child requires representation, the Agency will appoint a person with parental responsibility to be the child’s representative, unless the Agency decides it is more appropriate to appoint a person without parental responsibility to act as the child’s representative. [s74]
Person with parental responsibility
A person has parental responsibility of a child if [s75]:
- they are the child’s parent;
- they have rights and obligations conferred upon them regarding the child according to a parenting order; or
- they are the child’s guardian.
If one or more persons have parental responsibility for the child, the Agency may determine that one or more persons are the representative of the child.
[Part 4.3 – 4.6 Rules-Children] requires additional procedures to be fulfilled where a child has a guardian.
Person without parental responsibility
The Agency may decide that a person with parental responsibility is not appropriate to act as a child’s representative and appoint a person without parental responsibility based upon considerations contained in [Part 3.5 Rules-Children].
The representative of a child must obtain the wishes of the child concerned and act in the best interests of the child. [s76(1)]
To ensure the best interests of the child are identified, the representative of a child must consult with the guardian of the child or a person with parental responsibility of the child, and any other person who assists the child to manage their day-to-day life. [Part 6.4 Rules-Children]
The representative of a child may perform all acts required or permitted to be done under the NDIS in relation to the child. [s74(1)]
The representative may request that the child’s plan management be managed by one of the following [s74(2)]:
- the representative;
- a registered plan management provider; or
- the Agency or a person specified by the Agency.
The representative must not manage the child’s plan personally if the representative is to any extent insolvent under administration or to a particular extent, would present an unreasonable risk to the participant, or permit the person to perform matters which they are prohibited from performing. [s74(4)]