Guardianship and Administration
- What happens if a person loses capacity and has not made an Enduring Power of Attorney?
- What is impaired capacity?
- How are Guardians and Administrators appointed?
- What is a Guardian?
- What is an Administrator?
- What are the duties of an Administrator?
- Who can be appointed as Administrator?
- What is the Queensland Civil and Administrative Tribunal (QCAT)?
- Who is the Public Guardian?
- Who is the Public Advocate?
- What is the Community Visitor Program?
What happens if a person loses capacity and has not made an Enduring Power of Attorney?
Sometimes in life, people lose the capacity to make decisions for themselves. The Guardianship and Administration Act 2000 provides a mechanism for decisions to be made on behalf of an adult if they lose capacity due to accident, illness or age.
The Guardianship and Administration Act 2000 enables the Queensland Civil and Administrative Tribunal to appoint Administrators and/or Guardians to make decisions on behalf of the adult. Once appointed, Administrators can make financial decisions, and legal decisions related to financial matters, on behalf of the adult. Guardians can make decisions on personal, health and lifestyle matters as well as other legal matters not related to the adult's finances or property.
A person may have impaired capacity if they are unable to understand, make or implement a decision.
The law presumes everyone has capacity to make their own decisions. You cannot assume someone has impaired capacity without sufficient evidence.
‘Capacity’ is the ability to:
- understand the nature and effect of decisions about a matter
- freely and voluntarily make decisions about the matter, and
- communicate the decisions in some way.
Just because someone has impaired capacity doesn’t necessarily mean that they can’t make decisions for certain matters. Many people with impaired capacity can be supported to make decisions for themselves. The law states that people with impaired capacity have a right to adequate and appropriate support in decision-making.
An application is made to the Queensland Civil and Administrative Tribunal. The Queensland Civil and Administrative Tribunal is an independent body that determines the best person or entity to appoint as Guardian or Administrator.
The Queensland Civil and Administrative Tribunal will only appoint a Guardian or Administrator if it is satisfied that:
- The adult has impaired capacity;
- there is a need for a decision or the adult is likely to do something that involves or is likely to involve unreasonable risk to the adult’s health, welfare or property; and
- If a Guardian or Administrator is not appointed, the adult's needs will not be adequately met or their interests will not be adequately protected.
A Guardian is a person appointed by the Queensland Civil and Administrative Tribunal to make personal and lifestyle decisions for an adult with impaired capacity. This includes decisions about an adult's health care or welfare. For example, decisions about where the adult lives, what they eat and certain decisions about their medical treatment.
An Administrator is appointed by the Queensland Civil and Administrative Tribunal to make financial decisions, and legal decisions related to financial matters, on behalf of an adult who is unable to do so themselves. The Administrator must act in accordance with the provisions of the Guardianship and Administration Act 2000 and the directions of the Queensland Civil and Administrative Tribunal Order.
The Guardianship and Administration Act 2000 outlines the general principles (PDF, 26 KB) that must be followed. In addition, when an administrator is appointed they are required to develop and implement a financial management plan that ensures the effective and responsible administration of the adult's finances. This requires an administrator to (among other things):
- Determine the full nature and extent of the adult's financial interests
- Ensure all entitlements to income or benefits such as pensions are obtained
- Develop a budget covering expected income and expenditure that ensures financial security and maximises the adult's independence and quality of life
- Maintain clear and accurate records, including receipts, of all actions taken on the adult's behalf
- Initiate or follow-up any matters that affect the adult including taxation, social security, legal claims and insurance
- Ensure that the adult participates in the decision-making process to the greatest extent practicable
- Recognise and take into account the adult's cultural and religious values
- Act in accordance with Part 3 of the Trusts Act 1973 (commonly known as the prudent person rule (PDF, 128 KB) when making investments on behalf of the adult. This includes an obligation to review the performance of investments, to consider the risk of capital or income loss or depreciation, the likely income return and the timing of income return.
The Public Trustee can be appointed as an Administrator.
If an individual wishes to be appointed as Administrator they must be:
- At least 18 years of age
- Not a paid carer or health provider for the adult (note: paid carer does not mean someone on the carer pension or similar benefit)
- Not a bankrupt or taking advantage of the laws of bankruptcy.
A trustee company under the Trustee Companies Act 1968 can also be appointed as Administrator.
Other than the Public Trustee, a proposed Administrator must sign the application form to show they are willing to be appointed. An Administrator cannot be appointed unless they consent to the appointment in writing. There is no need for a signature if the Public Trustee is proposed to be the Administrator. This is because the Public Trustee has given a commitment to the Queensland Civil and Administrative Tribunal to always act as Administrator if needed.
The Queensland Civil and Administrative Tribunal is responsible for:
- Minor civil disputes and certain other civil disputes
- Making and reviewing decisions about a range of matters including Guardianship and Administration
- Reviewing decisions that have been previously made by a Queensland Government Department, Local Government or regulatory authority
- Regulating occupations
- Anti-discrimination matters.
The Guardianship and Administration functions of the Queensland Civil and Administrative Tribunal include -
- Consideration of applications for appointment of Guardians and/or Administrators
- Appointment of Guardians and Administrators and review of their appointments
- Making declarations about the capacity of an adult, Guardian, Administrator or Attorney
- Providing directions or advice in relation to Guardians and Administrators, Enduring Powers of Attorney, Attorneys and related matters
- Ratification of action taken or approval of proposed action for an adult by an informal decision maker
- Consent to certain types of special health care for the adult
- Registration of orders of a similar type (i.e. Guardianship and Administration orders made outside of Queensland)
- Reviewing a matter in which a decision has been made by the Registrar of QCAT.
Further information is available from:
Queensland Civil and Administrative Tribunal
Level 9, Bank of Queensland Centre
259 Queen Street
GPO Box 1639 Brisbane Q 4001
Phone 1300 753 228
Fax (07) 3221 9156
The Office of the Public Guardian is an independent statutory office established to protect the rights, interests and wellbeing of adults with impaired decision-making capacity, and children and young people in out-of-home care—foster care, kinship care, residential care—and at visitable sites.
For further information:
Office of the Public Guardian
Brisbane Magistrates Court
363 George Street Brisbane QLD 4000
Phone 07 3234 0870 or 1300 653 187
Fax 07 3239 6367
To find out more visit: www.publicguardian.qld.gov.au/
The Public Advocate is an independent statutory position appointed by the Governor-in-Council under the Guardianship and Administration Act 2000 (the Act). The Public Advocate works on behalf of adults with impaired decision-making capacity to:
- promote and protect their rights, including protecting them from neglect, exploitation and abuse
- encourage the development of programs to help them reach the greatest degree of autonomy
- promote, monitor and review the provision of services and facilities for them.
For further information:
Office of the Public Advocate
State Law Building
50 Ann Street Brisbane QLD 4000
Phone 07 3224 7424
Fax 07 3224 7364
The Public Guardian Act 2014 enables community visitors to inspect visitable sites and ensure the interests of adults with impaired capacity are being safeguarded. Visitable sites are: disability accommodation provided or funded by the Department of Communities or National Disability Insurance Scheme (NDIS), authorised mental health services or private hostels (with level 3 accreditation). A community visitor can inquire into and report on the adequacy of services for the assessment, treatment and support of adults at the visitable site.
The community visitor measures the appropriateness and standard of services for the accommodation, health and wellbeing of adults at the visitable site. The community visitors can view the extent of services provided to the adults as well as the adequacy of information given to them and the accessibility and effectiveness of procedures for complaints about the services.
A community visitor may inquire into and seek to resolve complaints or identify and make appropriate and timely referrals of unresolved complaints to appropriate entities for further investigation or resolution.
For further information:
Community Visitor Program
154 Melbourne Street
South Brisbane QLD 4101
Phone 07 3406 7711 or 1300 302 711 (calls charged at the local rate outside Brisbane)
Fax 07 3109 9179