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?
- Who is the public guardian?
- Who is the public advocate?
- What is the community visitor program?
- How can I find out more?
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 (QCAT) 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. Three parts to the decision making process have been identified:
- Understanding the nature and effect of the decision;
- Deciding freely and voluntarily;
- Communicating the decision in some way whether orally, in writing or other methods of communication, such as sign language.
The complexity of decisions an adult may be faced with can vary and so too can an adult’s capacity for decision making. Hence, an adult may be able to cope with some decision making tasks and not others.
Moreover, a person's capacity to make the same decision may vary over time depending on the nature of their disability.
An application is made to the Queensland Civil and Administrative Tribunal. The Tribunal is an independent body that determines the best person or entity to appoint as Guardian or Administrator.
The Tribunal will only appoint a guardian or administrator if it is satisfied that:
- The adult has impaired capacity;
- There is a need for a guardian or administrator;
- 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 Tribunal to make personal and lifestyle decisions for an adult with impaired capacity. A Guardian can make decisions about an adult's lifestyle and/or health care. For example, decisions about where the adult lives, what they eat and certain decisions about their medical treatment.
However, a guardian cannot make decisions about special health matters such as sterilisation. Nor can they make decisions with regard to special personal matters such as consenting to the adult adopting a child or making the adult's Will.
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 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 includes:
- 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 and their relatives and carers participate in the decision-making process;
- 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 or maintaining investments on behalf of the adult. This includes an obligation to review the performance of investments on an annual basis at minimum, to consider the risk of capital or income loss or depreciation, the likely income return and the timing of income return.
The Public Trustee of Queensland can be appointed as an administrator.
If an individual wishes to be appointed as administrator they must be:
- At least 18 years of age and;
- 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 as the Public Trustee has given a commitment to the Tribunal to always act as administrator if needed.
QCAT is responsible for:
- making and reviewing decisions about a range of matters including guardianship and administration, and
- reviewing decisions that have been previously made by a Queensland Government department, local government or regulatory authority.
The Tribunal has exclusive jurisdiction for the appointment of guardians and administrators for adults with impaired capacity. However, the Supreme Court can appoint guardians and/or administrators in settlement or damages awards and is deemed to be the Tribunal in these instances.
The Tribunal consists of appointed members of the community who have experience, either professionally or personally, in assisting people who have impaired capacity. QCAT is led by the President (a Supreme Court Judge) who is responsible for the overall successful operation and performance of the tribunal, and the Deputy President (a District Court Judge). The tribunal is made up by members, adjudicators and the registry.
The guardianship and administration functions of the Tribunal include -
- Consider applications for appointment of guardians and/or administrators;
- Appoint guardians and administrators and review their appointments;
- Make declarations about the capacity of an adult, guardian, administrator or attorney;
- Provide directions or advice in relation to guardians and administrators, enduring powers of attorney, attorneys and related matters;
- Ratify an actual or proposed action for an adult by an informal decision maker;
- Consent to certain types of special health care for the adult;
- Register orders of a similar type (ie. guardianship and administration orders) made outside of Queensland;
- Review a matter in which a decision has been made by the Registrar of the Tribunal.
The public guardian is an independent statutory officer responsible for protecting the rights and interests of adults with impaired capacity and children and young people in the child protection system. The public guardian can offer support and advice to attorneys and supervise an attorney if there is any concern about the manner in which the attorney is performing his/her role. The public guardian is the statutory health attorney of last resort for an adult with impaired capacity if there is no one else available with the authority to make health decisions.
The public guardian protects adults who have impaired capacity from neglect, exploitation or abuse. It can investigate complaints and allegations about actions by an attorney, guardian or administrator or another person acting or purporting to act under an enduring power of attorney. The Public Guardian can mediate between attorneys, guardians or administrators and others if there is a dispute.
As the result of an investigation the public guardian can suspend the power of any attorney if suspected to have acted in an inappropriate manner placing an adult with impaired capacity at personal or financial risk. The Queensland Civil and Administrative Tribunal can also appoint the public guardian as guardian (substituted decision maker for personal matters) as last resort.
The Guardianship and Administration Act 2000 also creates the role of the public advocate. The public advocate's role is systemic advocacy to:
- promote and protect the rights of adults with impaired capacity;
- promote the protection of the adults from neglect, exploitation or abuse;
- encourage the development of programs to help the adults reach the greatest practicable degree of autonomy;
- promote the provision of services and facilities for the adults;
- monitor and review the delivery of services and facilities to the adults;
- The public advocate may intervene in a proceeding before a court, Tribunal or in an official inquiry. However, this intervention requires the leave of the court, Tribunal or person in charge of the inquiry and is subject to the terms imposed by those bodies.
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 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 well being 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.
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
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/
State Law Building
50 Ann Street
Brisbane QLD 4000
Phone 07 3224 7424
Fax 07 3224 7364
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