Last updated 16 August 2016
Many people with impaired decision-making capacity may not need a substitute decision maker, as they have family or informal support networks who help them make decisions. However, there may be times where the informal networks are inadequate or uncertain, and a formal process to ensure the protection of the adult’s interests is required.
An adult may require the appointment of a guardian or administrator if the adult is suffering abuse or exploitation, or an agreement such as a sale of property needs to be signed by the adult 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, contact with friends and family, and support services. An administrator is someone appointed to manage the financial matters of the adult (s 12 Guardianship and Administration Act 2000 (Qld) (Guardianship Act)).
The Queensland Civil and Administrative Tribunal
The Queensland Civil and Administrative Tribunal (QCAT) has exclusive jurisdiction 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 jurisdiction 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 an adult 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 adult in question (s 118 Guardianship Act). The tribunal usually consists of a single member. 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 adult’s views, wishes and interests. The tribunal conducts hearings in a less formal manner than court hearings and is not bound by the rules of evidence (i.e. QCAT is permitted to inform itself in a way it considers appropriate)
The Queensland Civil and Administrative Tribunal can make interim orders, but these can continue for no longer than three months (s 129 Guardianship Act).
An order of QCAT to appoint a guardian or administrator may be reviewed on its own initiative or upon application by the adult, an interested person for the adult, 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 affects the order or if circumstances have changed (s 29 Guardianship Act). The conduct of the review is regulated by s 31 of the Guardianship Act.
For more information on appeals see pt 8 of the Guardianship Act. In order to promote accountability and transparency in tribunal 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).
Amongst other things, 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 is vested with broad investigative powers. Some of the investigative powers include requiring an attorney or an administrator to provide accounts and records in order to carry an audit and issuing a summons to a person to provide information.
The Public Guardian also has protective powers. These powers include suspending an attorney’s power, starting legal proceeds to claim or recover property and obtaining a warrant to enter and remove a person from an immediate risk of harm.
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.