Last updated 15 July 2022
In Queensland it is presumed a person over the age of 18 has the capacity to make their own decisions. There are three elements to making a decision:
- understanding the nature and effect of the decision
- making a decision freely and voluntarily
- communicating the decision in some way.
If a person needs to make a decision and is unable to carry out any part of this decision-making process, they have what is referred to as impaired decision-making capacity. Many people with impaired decision-making capacity may not need to have a substitute decision maker, as they have family or an informal support network who can help them with their decision making.
However, there may be times where family and informal networks are inadequate and a more formal process to ensure the protection of the person’s interests is required. A person may require the appointment of a guardian or administrator to assist them with financial decisions, or personal and health decisions. They may also require a guardian or administrator if they are suffering abuse or exploitation, or if an agreement, such as a sale of property, needs to be signed by the person and no one else is authorised to sign on their behalf.
What are guardians and administrators?
A guardian is someone appointed to deal with the personal and health matters of the adult. These matters include decisions about medical treatment, accommodation and contact with friends, family and support services. Guardians can be family members or friends of the person, or they may be a delegate from the Office of Public Guardian. If the person is able to communicate their views in some way, the guardians should take these into account when making any decisions.
An administrator is someone appointed to assist the person to help manage their financial matters (s 12 Guardianship and Administration Act 2000 (Qld) (Guardianship Act)). An administrator can be a family member, close friend, a professional or any person who has a genuine interest in the person’s welfare. An administrator must be over the age of 18, not bankrupt and cannot be the person’s paid carer or health provider. It may be a delegate of the Public Trustee of Queensland.
The Queensland Civil and Administrative Tribunal
The Queensland Civil and Administrative Tribunal (QCAT) generally has the authority to appoint guardians and administrators for adults with impaired capacity, except where the Supreme Court appoints guardians or administrators in settlement of damage awards (s 245 Guardianship Act). The tribunal also has the ability to:
- make declarations about the capacity of an adult, guardian, administrator or attorney for a matter
- review the appointment of an administrator or guardian
- ratify decisions by informal decision makers
- give directions to guardians or administrators
- make declarations or orders about guardians, administrators and enduring powers of attorney
- consent to special health care for adults with impaired decision-making capacity (s 82 Guardianship Act)
- make orders regarding use of restrictive practices.
Applications can be made to QCAT by anyone who has a genuine interest in the welfare of the person with impaired decision-making capacity. These include family members, close friends and the adult guardian (s 115 Guardianship Act).
The notice period for hearings is seven days and, in some circumstances, QCAT may not give notice of the hearing to the person in question (s 118 Guardianship Act). The tribunal usually consists of a single member, and leave (permission) of QCAT is required for a person to be represented by a lawyer. In certain circumstances, QCAT may appoint a representative to represent the person’s views, wishes and preferences. Tribunal hearings are conducted in a less formal manner than court hearings and the tribunal is not bound by the rules of evidence (meaning QCAT is permitted to inform itself in a way it considers appropriate).
The tribunal can make what is called ‘interim orders’, but only if it is satisfied the person has or may have impaired decision making and there is an immediate risk of harm to the health, welfare or property of the person including because of the risk of abuse, exploitation, neglect or self-neglect. The interim orders may be made without a hearing and deciding the proceeding. Interim orders can be in effect for a period of time specified in the order, but the maximum period of time that may be specified is three months (s 129 Guardianship Act).
An order of QCAT to appoint a guardian or administrator may be reviewed by QCAT on its own initiative or upon an application by the person concerned, an interested person for the person concerned, a Public Trustee or certain trustee companies. The review may be requested at any time during the term of the order if there is new information that may affect the order or if circumstances have changed (s 29 Guardianship Act).
When QCAT is conducting an appointment review process, it must revoke the order making the appointment unless it is satisfied it would make the appointment if a new application for an appointment were to be made. If QCAT is satisfied there are appropriate reasons for the appointment to continue, it may either continue the order making the appointment or changing the order including by changing the terms of the appointment, removing an appointee or making a new appointment (s 31 of the Guardianship Act).
An eligible person can appeal against a decision made by QCAT (except for a limitation order discussed below) (s 163 of the Guardianship Act).
In order to promote accountability and transparency in QCAT hearings, information about proceedings are generally available to the public. However, in the interest of protecting the privacy of persons with impaired capacity, QCAT may make limitation orders where QCAT can demonstrate that such an order is necessary to prevent serious harm or injustice to an adult with impaired capacity (ss 100-113 Guardianship Act).
Limitation orders can:
- prevent the disclosure or publication of certain information
- close a hearing to members of the public
- limit an active party’s access to evidence given in the hearing.
The functions and powers of the Public Guardian are established under the Public Guardian Act 2014 (Qld) (Public Guardian Act). The Public Guardian is able to:
- be appointed as a guardian by QCAT
- investigate complaints about the use of a power of attorney
- investigate physical and financial abuse or neglect of an adult
- mediate disputes between attorneys or others
- act as an attorney or guardian for personal or health matters
- provide legal advocacy and representation on behalf of a person with impaired capacity by instructing a solicitor to act
- provide consent to medical treatment when no statutory health attorney is available.
The Public Guardian Act gives the Public Guardian substantial investigative powers. These investigative powers include:
- gaining access to any relevant information necessary to carry out the investigation including medical and financial information
- require people to produce records/accounts
- issue a written notice for a person to attend at a stated time and place, give information, answer questions and produce documents.
The Public Guardian also has protective powers. These powers include suspending an attorney’s power, starting legal proceedings to claim or recover property and obtaining a warrant to enter and remove a person from an immediate risk of harm.
The Public Trustee can be appointed as an administrator and must act in line with the Guardianship Act. It must also act in line with the directions of QCAT or a court order. The Guardianship Act sets out general principles that an administrator must apply when they are making decisions for a person (s 11B Guardianship Act). The Public Trustee must ensure they act in a way that promotes and safeguards, and is the least restrictive of the person’s rights, interests and opportunities.
The Guardianship Act also sets out the obligations for administrators, such as to acting honestly and with reasonable diligence (s 35), keeping accurate records (s 49) (QCAT may ask for the records to be audited) and to work with others appointed to make decisions for the person (ss 39-40 Guardianship Act).
If the Public Trustee is appointed as a person’s financial attorney (rather than as an administrator) under an Enduring Power of Attorney document, their actions will be governed by the Powers of Attorney Act 1998 (Qld).
When making financial decisions for the person, the Public Trustee should:
- support the person to the greatest extent practicable to make their own decisions
- support the person to express their views, wishes and preferences, and take these into account to the greatest extent practicable
- use the principles of substitute judgement to try and work out what the person’s views wishes and preferences would be if the person’s views, wishes and preferences cannot be communicated.
More information about the Public Trustee can be found on their website.
The Public Advocate is an independent statutory officer appointed under s 208 of the Guardianship Act. The function of the public advocate is to provide systems advocacy. This involves speaking, acting or writing in order to improve the systems that support and provide services to people with impaired capacity and address the gaps and failures in those systems.
The Public Advocate promotes and protects the rights of adults with impaired capacity from neglect, exploitation and abuse; encourages programs that assist the adult to reach the greatest practical degree of autonomy; and monitors and reviews the delivery of services and facilities to adults.
The Public Advocate has the power to intervene in court or tribunal proceedings involving the protection of the rights or interests of an adult, providing the court has granted leave to do so (s 210 Guardianship Act).
The Office of the Public Advocate publishes material on a range of these matters.