Guardianship and Administration – Overview

Decision Making for Adults

When deciding whether a formal substitute decision maker is required, QCAT must consider:

• Whether the person has impaired decision making for a particular matter, and
• Whether there is a need for a decision maker
  • Are informal supporters sufficient, are attorneys acting under EPOA or SHA appropriately, etc
• Whether the proposed decision maker is appropriate

QCAT can make decisions about decision-making for adults with impaired capacity, including financial decisions (administration) and personal and health decisions (guardianship).

QCAT’s focus is always the wellbeing, needs and interests of the adult.

QCAT can receive applications for guardianship and administration.

What is the Queensland Civil and Administrative Tribunal (QCAT)?

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 (QCAT)

Level 11, NAB House
259 Queen Street
GPO Box 1639 Brisbane Q 4001
Phone 1300 753 228
Fax (07) 3221 9156
www.qcat.qld.gov.au

Are guardianship and administration orders recognised throughout Australia?(AGAC FAQ)

A guardianship or administration order made in one State or Territory is generally recognised, or able to be registered, in another State or Territory.

Check the website of the Board or Tribunal in the relevant State or Territory for further information or contact the Board or Tribunal in that jurisdiction.

Best Practice for Tribunal Proceedings (AGAC)

https://www.agac.org.au/images/stories/agac-best-practice-guidelines.pdf

When does an adult need help making decisions?

There are three elements to making a decision:

1. understanding the nature and effect of the decision;
2. freely and voluntarily making a decision; and
3. communicating the decision in some way.

If an adult needs to make a decision, and is unable to carry out any part of this process, they have impaired decision-making capacity.

QCAT Decisions

About adults

QCAT can decide a range of matters about adults including:

• making a declaration about an adult’s decision-making capacity for some or all matters
• determining if informal arrangements in place are adequate to protect the adult
• appointing a guardian to make some or all personal and health care decisions
• appointing an administrator to make some or all financial decisions
• making a temporary decision to deal with an urgent situation
• making a declaration about the execution and appointment of an enduring power of attorney.

About guardians or administrators

Generally, guardians or administrators:

• can be appointed for up to five years
• must be at least 18 years of age and not a paid carer for the adult
• can be reimbursed for reasonable expenses, but cannot be paid for their services
• can be reviewed by QCAT and removed under a range of circumstances.

Who can request appointment of a guardian or administrator?

Family members, close friends, professionals or anyone who has a genuine and continuing interest in the welfare of an adult with impaired decision-making capacity can apply for an administrator or guardian to be appointed.

Adults with impaired decision-making capacity can also apply on their own behalf.

Working with other organisations

QCAT cannot act as a decision-maker for an adult. If there is no suitable person to be appointed, QCAT may appoint:

• the Office of the Public Guardian as a guardian for an adult
• the Public Trustee Queensland as an administrator for an adult.

Reference: https://www.qcat.qld.gov.au/matter-types/decision-making-for-adults

Guardianship

Guardianship involves a person(s) (called a guardian) making decisions on behalf of another person about personal matters such as health care or accommodation.

QCAT has power under State legislation to make guardianship orders.  This means they can appoint a person(s) as guardian for a person whose capacity to make decisions is impaired and who needs a guardian to make certain decisions for them.

Guardians may be family members or friends of the person with a disability or they may be a delegate from the Public Guardian of Qld.

A person may not need a guardian if, for instance, the person has previously made an enduring power of attorney.

Who is the Office of the Public Guardian (OPG)?

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.

To find out more and understand how the public guardian make decisions visit: https://www.publicguardian.qld.gov.au/guardianship-and-decision-making

Restrictive Practices Guideline

Office of the Public Guardian 

Phone 07 3234 0870 or 1300 653 187
Fax 07 3239 6367
Web: www.publicguardian.qld.gov.au/
Email adult@publicguardian.qld.gov.au

What is the Community Visitor Program?

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 

L4, 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
Email communityvisitor@publicguardian.qld.gov.au

Financial Administration

What is Financial Administration?

Financial Administration, or financial management, involves a person(s) (called a Financial Administrator) managing another person’s financial and legal affairs or making specific decisions in relation to them.

QCAT has power under State legislation to make administration orders.  This means they can appoint a person as administrator for a person whose capacity is impaired and who needs an administrator to make decisions for them.

Administrators may be family members or friends of the person with a disability or they may be professional persons, professional organisations or delegate from the Public Trustee of Qld.

A person may not need an administrator if the person has previously made an enduring power of attorney.

What are the duties of an Administrator?

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.

Who can be appointed as Administrator?

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.

https://www.pt.qld.gov.au/financial-administration/guardianship-and-administration/

Who is the Public Advocate?

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

Level 1
State Law Building
50 Ann Street Brisbane QLD 4000
Phone 07 3224 7424
Fax 07 3224 7364
Email public.advocate@justice.qld.gov.au

Further Information

Applying for Guardianship Factsheet