Introduction

If you are unfamiliar with guardianship and administration law, you may want to first read GAA - Guardianship and Administration Toolkit.

The following information provides an outline of the law behind making an application to QCAT for the formal appointment of a guardian or administrator or both.

The relevant legislation is the Guardianship and Administration Act 2000 (Qld) (GAA Act).

WHO MAY APPLY?

The Tribunal may make an appointment on its own initiative, or on the application of the adult, the adult guardian or an "interested person": s 12(3), GAA Act.

"Interested person" means "a person who has a sufficient and continuing interest in the other person": Sch 4, AA Act.

If necessary, the Tribunal may decide whether a person is an interested person: s 126(1), GAA Act.

If the Tribunal decides that a person is not an interested person, that person may ask for the Tribunal's reasons and the Tribunal must give the person written reasons for its decision: s 126(2), GAA Act.

GUARDIAN OR ADMINISTRATOR?

Whether an application is made for a guardian, administrator or both depends upon the type of matter for which substituted decision making for the adult is needed:

• For personal matters - an application should be made for a guardian
• For financial matters - an application should be made for an administrator.

CRITERIA FOR APPOINTMENT - S 12(1)

Before making an appointment, the Tribunal must be satisfied that:

(a) The adult has impaired capacity for the matter; and
(b) There is a need for a decision in relation to the matter or the adult is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the adult's health, welfare or property; and
(c) Without an appointment -
(i) the adult's needs will not be adequately met; or
(ii) the adult's interests will not be adequately protected.

(a) Does the person have "impaired capacity" for the matter:

Impaired capacity has a defined meaning under the GAA Act. See fact sheet GAA - Capacity for a detailed explanation.

(b) Is there a need for a decision in relation to the matter OR is the adult likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the adult's health, welfare or property?

The Tribunal will not make an appointment unless there is a clear and present need for an appointment.  It will not make an appointment for a potential future need or 'just in case'.

Is the person under 18 years of age?

The Tribunal does have jurisdiction to make an advanced appointment for an individual who has reached the age of 17 ½ years of age, but not 18 years, provided there is a reasonable likelihood that when the individual does reach the age of 18 they will have impaired capacity for the matter.  The same criteria under s 12 must be met.  The appointment will not commence until the person has reached 18 years of age (s 13, GAA Act).

(c) Without an appointment will the adult's needs not be adequately met OR will the adult's interests not be adequately protected?

This recognises that if informal or existing arrangements are currently adequate, then there is no need to formally appoint a guardian or administrator. For example, consideration should be given to:

• whether the adult can be supported by other family members, social welfare and care organisations
• whether adaptive equipment and modification to their living environment is necessary 
• whether there is an existing enduring power of attorney and whether continuance of the attorney is appropriate.

Some or all of these may ameliorate the need for a formal appointment, particularly of a guardian.

(d) Is appointment consistent with the intent of the Act, general principles and, if applicable, the health principle?

These principles should be applied when exercising a power under the GAA Act. They are set out in full in fact sheet GAA -Purpose of Act and General Principles.

TYPES OF APPOINTMENTS

Appointments on certain conditions

Appointments can be for a particular matter or all matters and may be subject to particular conditions imposed upon the appointee: s 12(2), GAA Act.

Period of Appointment

An appointment can be for a specified length of time, but not longer than 5 years. After 5 years the appointment must be reviewed by the Tribunal: s 28, GAA Act.

If the Tribunal does not consider the impaired capacity of the adult is permanent, the Tribunal must state in its order when it considers it appropriate for the appointment to be reviewed: s 14(5), GAA Act.

Multiple appointments:

Persons can be appointed:

• Solely - for a particular matter or all matters
• Jointly - co-appointees must make decisions together
• Jointly and severally - co-appointees can make decisions together or separately
• Severally - appointees make decisions about different matters separate from other appointees
• Successively - another co-appointee can make decisions when the first appointee is no longer able to do so.

WHO MAY BE APPOINTED?

For a guardian: s 14(1)(a), GAA Act -

•  A person who is at least 18 years old and is not a paid carer or health provider for the adult; or
• the Adult Guardian;  and

who the Tribunal considers appropriate for appointment, having regard to the matters in s 15(1) ("appropriateness considerations" - see below).

For an administrator, s 14(1)(b), GAA Act -

• A person who is at least 18 years old, not a paid carer or health provider for the adult, not bankrupt or taking advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966 (Cth) or a similar law of a foreign jurisdiction; or
• The Public Trustee or a  trustee company under the Trustee Companies Act 1968; and

who the Tribunal considers appropriate for appointment, having regard to the matters in s 15(1) ("appropriateness considerations" - see below).

"A trustee company under the Trustee Companies Act 1968" means under Sch 2, Part 1 -

• ANZ Executors & Trustee Company Limited
• National Australia Trustees Limited
• Permanent Trustee Company Limited
• Perpetual Trustees Australia Limited
• Perpetual Trustees Queensland Limited
• Tower Trust Limited
• Trust Company of Australia Limited

Appropriateness considerations, s 15(1), GAA Act

In deciding whether a person is appropriate for appointment, the Tribunal must consider the following matters:
(a) the general principles and whether the person is likely to apply them;
(b) if the appointment is for a health matter-the health care principle and whether the person is likely to apply it;
(c) the extent to which the adult's and person's interests are likely to conflict;
(d) whether the adult and person are compatible including, for example, whether the person has appropriate communication skills or appropriate cultural or social knowledge or experience, to be compatible with the adult;
(e) if more than one person is to be appointed-whether the persons are compatible;
(f) whether the person would be available and accessible to the adult;
(g) the person's appropriateness and competence to perform functions and exercise powers under an appointment order.

General principles and the health care principle

See GAA -Purpose of Act and General Principles.

Conflict

The fact that a person is a relation of the adult does not, of itself, mean the adult's and person's interests are likely to conflict: s 15(2), GAA Act.

The fact a person may be a beneficiary of the adult's estate on the adult's death does not, of itself, mean the adult's and person's interests are likely to conflict: s 15(3), GAA Act.

Appropriateness and competence - s 15(4), GAA Act

In determining appropriateness and competence, the Tribunal must have regard to the following:

(a) the nature and circumstances of any criminal history of the person, including the likelihood the commission of any offence in the criminal history may adversely affect the adult

(b) the nature and circumstances of any refusal of, or removal from, appointment as a guardian, administrator, attorney (ie, power of attorney, or attorney under an advance health directive or similar document under the law of another jurisdiction) or other person making a decision for someone else;

(c) for proposed administrators who are individuals (ie, not companies) -

• the nature and circumstances of the person having been a bankrupt or taking advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966 (Cth) or similar law of foreign jurisdiction;
• the nature and circumstances of a proposed, current or previous arrangement with the person's creditors under the Bankruptcy Act 1966 (Cth) or similar law of foreign jurisdiction;
• the nature and circumstances of a proposed, current or previous external administration of a corporation, partnership or other entity of which the person is or was a director, secretary or partner or in whose management, direction or control the person is or was involved.

DUTIES OF PROPOSED APPOINTEES

For Proposed Guardians and Administrators: s16, GAA Act
A person who has agreed to a proposed appointment must advise the Tribunal (before the Tribunal makes an appointment) of:

(1) Whether he or she:
(a) is under 18 years; or
(b) is a paid carer or health provider for the adult; or
(c) has any criminal history, whether in Queensland or elsewhere; or
(d) has been, whether in Queensland or elsewhere, refused, or removed from, appointment as a guardian, administrator, attorney or other person making a decision for someone else; or
(e) for a proposed appointment as administrator-

(i) is bankrupt or taking advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966 (Cwlth) or a similar law of a foreign jurisdiction; or
(ii) has ever been bankrupt or taken advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966 (Cth) or a similar law of a foreign jurisdiction; or
(iii) is proposing to make, or has ever made, an arrangement with his or her creditors under the Bankruptcy Act 1966 (Cth), part 1012 or a similar law of a foreign jurisdiction; or
(iv) is or was a director, secretary or partner, or is or was involved in the management, direction or control of a corporation, partnership or other entity that is proposing to be, is or has been, under external administration.

(2) Any likely conflict between-

(a) the duty of the proposed appointee if appointed as guardian or administrator towards the adult; and
(b) either-

(i) the interests of the proposed appointee or a person in a close personal or business relationship with the proposed appointee; or
(ii) another duty of the proposed appointee as guardian or administrator for another person.

For Proposed Administrators only
A person who agrees to be appointed as administrator must give a financial management plan to the Tribunal for approval, s 20, GAA Act.

See "A financial management plan for proposed administrators" on the QCAT website at: http://www.qcat.qld.gov.au/Formsfinal/Fin_mgmt_prop_admin.pdf.

Guidelines for completing this form can be found at: http://www.qcat.qld.gov.au/financial-management-plan-guidelines.htm

For more information

• Form Number 10 Application for administration/guardianship appointment or review http://www.qcat.qld.gov.au/forms.htm
• Guardianship for adults fact sheet http://www.qcat.qld.gov.au/publications.htm
• Administration for adults fact sheet http://www.qcat.qld.gov.au/publications.htm
• QCAT website - http://www.qcat.qld.gov.au/guardianship-for-adults-matters.htm
• QCAT website - http://www.qcat.qld.gov.au/administration-for-adults.htm
  

Contact us

Please contact QPILCH by:

E:    services@qpilch.org.au
T:    07 3846 6317
F:    07 3846 6311
P:    QPILCH, PO Box 3631, South Brisbane BC, Qld 4101