Introduction

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

This factsheet sets out the powers and duties of guardians and administrators, and remedies available in case of breach.

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

POWERS OF GUARDIANS AND ADMINISTRATORS

General powers
Guardians - Unless the Tribunal orders otherwise, a guardian is authorised to do, in accordance with the terms of the guardian's appointment, anything in relation to a personal matter that the adult could have done if the adult' has capacity for the matter when the power is exercised: s 33(1), GAA Act.

Administrators - Unless the Tribunal orders otherwise, an administrator is authorised to do, in accordance with the terms of the administrator's appointment, anything in relation to a financial matter that the adult could have done if the adult had capacity for the matter when the power is exercised: s 33(2), GAA Act.

Other powers/entitlements
Right to information - A guardian or administrator has a right to all the information the adult would have been entitled to if the adult had capacity and which is necessary to make an informed exercise of the power: s 44, GAA Act. If information is withheld, the guardian or administrator can apply to the Tribunal for an order that the information be made available.
 
Execution of instruments -  If necessary or convenient for the exercise of power given to a guardian or administrator (appointee), the appointee may execute the instrument with the appointee's own signature and do any other thing in the appointee's own name.  The instrument must be executed in a way showing the appointee executes it as guardian or administrator for the adult: s 45, GAA Act.

Implied power to execute a deed - If the Tribunal order gives the appointee power to do a thing, the appointee is given power to execute a deed to do the thing: s 46, GAA Act.

Payment of expenses - A guardian or administrator is entitled to be reimbursed by the Adult for reasonable expenses incurred in acting as guardian or administrator: s 47, GAA Act. Remuneration of professional administrators is dealt with under s 48, GAA Act.

DUTIES OF GUARDIANS AND ADMINISTRATORS

A guardian or administrator:

• Must apply the general principles: s 34(1), GAA Act. Refer to fact sheet GAA - 2 Purpose of Act and General Principles.
• Must exercise powers honestly and with reasonable diligence to protect the adult's interests: s 35, GAA Act.
• Must exercise the power as required by the terms of any order of the tribunal: s 36, GAA Act.

In making health care decisions, a guardian must also apply the health care principle: s 34(2), GAA Act.

If a guardian or attorney for a health matter for an adult refuses to make or makes a decision about a health matter for the adult that is contrary to the health care principle, the Adult Guardian may exercise power for the health matter. If it does this, then the Adult Guardian must advise the Tribunal in writing of certain details, s 43, GAA Act.

Guardians and administrators are also under a duty to:

• Advise the Tribunal of their continuing appropriateness and competence with respect to the matters that they must advise the Tribunal under s 16: s 17, 18, GAA Act;
• If an appointment is automatically revoked under s 26, then the guardian or administrator must notify the Tribunal of the revocation: s 26(3), GAA Act;
• If the appointment is automatically revoked or revoked by the Tribunal or otherwise changes, then an administrator appointed for a matter involving an interest in land must notify the Registrar of Titles: s 32A, GAA Act.

DUTIES ON ADMINISTRATORS ONLY

The roles and responsibilities of private administrators are set out in a detailed publication on The Public Trustee of Queensland's website entitled: "A guide for financial administrators" http://www.pt.qld.gov.au/pubs/docs/Guidefinadmin.pdf.

Information is also available at http://www.qcat.qld.gov.au/appointed-administrator-information.htm.

Some key obligations are addressed below:

Notification of the Registrar of Titles  - s 21, GAA Act
Within 3 months of appointment, or change in appointment, the Tribunal and any remaining administrator must each advise the Registrar of Titles: s 21, s 32A, GAA Act. The administrator must pay the fee payable to have the advice entered in the relevant file at the titles office.

Avoid conflict transactions - s 37, GAA Act
An administrator may enter into a conflict transaction only if the Tribunal authorises the transaction, conflict transactions of that type or conflict transactions generally.

"Conflict transaction" means a transaction in which there may be conflict, or which results in conflict between -

• the duty of an administrator towards the Adult; and
• either:
  o the interests of the administrator or a person in a close personal or business relationship with the administrator; or
  o another duty of the administrator.

For example, a conflict transaction happens if the administrator buys the adult's car.

A transaction is NOT a conflict transaction only because by the transaction the administrator in the administrator's own right and on behalf of the Adult -

• deals with an interest in property jointly held;
• acquires a joint interest in property;
• obtains a loan or gives a guarantee or indemnity in relation to dealing with or acquiring a joint interest in property; or
• where the administrator is acting under s 55 to maintain the adult's dependents (see below).

"Joint interest" includes an interest as a joint tenant or tenant in common.

The Tribunal has the jurisdiction to authorise a conflict transaction, a type of conflict transaction or conflict transactions generally under s 152(1), GAA Act.

Keep records - s 49, GAA Act
Administrators must -

• Keep records that are reasonable in the circumstances; and
• If required by the Tribunal produce records of dealings and transactions involving the adult's property that are reasonable for inspection at the time the Tribunal decide; and
• Keep any other records the Tribunal requires and produce these records on demand.

Keeping financial records
Full details and records (such as receipts, bank statements and invoices) must be kept of the Adult's:

• Assets - what the Adult owns
• Liabilities - what the Adult owes
• Income and expenses - excluding minor items such as confectionary and toiletries.

The Tribunal may order an Adult's administrator or attorney for a financial matter to file in the Tribunal a summary of receipts and expenditure for the Adult or more detailed accounts of dealings and transactions for the Adult. The Tribunal may also order that the accounts be audited. (s 153)

Accounts of Administration
Administrators must provide accounts of administration in accordance with Presidential Direction 1 of 2003. See http://www.qcat.qld.gov.au/practice-directions.htm.

The accounts of administration must be provided in an approved form to the Tribunal annually, eight weeks before the anniversary of the appointment where the value of the adult's estate excluding the adult's principal place of residence or a nursing home bond is under $50,000.

The accounts of administration must be provided to one of the approved panel of examiners on an annual basis, eight weeks before the anniversary of the appointment where the value of the adult's estate excluding the adult's principal place of residence or nursing home bond is over $50,000. Details of the approved panel of examiners are contained in Presidential Direction 1 of 2003.

Example: If you were appointed in July 2007 for 2 years, you will need to provide accounts of administration in May 2008 and 2009.

The approved form is the Tribunal's "Account by Administrator" available on the QCAT website at http://www.qcat.qld.gov.au/forms.htm. The Tribunal requires the use of this form unless otherwise authorised.

Keep property separate - s 50, GAA Act
An administrator must keep the administrator's property separate from the adult's property. Eg. bank accounts in the Adult's name should continue in the Adult's name after appointment. Accounts may be placed in the administrator's name as administrator for the Adult if there is a risk that unauthorised persons will access the account.

This does not apply to: -

• Property jointly owned by the adult and administrator
• Another obligation imposed by law

Only invest in authorised investments - s 51
An administrator may only invest in authorised investments. However, the administrator may continue and reinvest in existing investments.

"Authorised investment" means-
(a)  an investment which, if the investment were of trust funds by a trustee, would be an investment by the trustee exercising a power of investment under Part 3 of the Trusts Act 1973; or
(b)  an investment approved by the Tribunal.

In relation to (a), investments pursuant to Part 3 of the Trusts Act are guided by the "Prudent Person" rule. See sections 22 to 24 of the Trusts Act 1973 (Qld) for further details on the prudent person rule and matters which an administrator must take into account.

The Tribunal may approve an investment as an authorised investment. (s152(2))

Gifts - s 54

Unless the Tribunal orders otherwise, an administrator may only make a gift of the adult's property if:

• The gift is:
  o A gift or donation of the nature the adult made when they had capacity; OR
  o A gift or donation of the nature the adult might reasonably be expected to make; AND
• The gift's value is not more than what is reasonable having regard to all the circumstances and, in particular, the adult's financial circumstances.

Administrators or connected charities are not precluded from receiving gifts.

An example of a situation where a gift may be reasonable is where the administrator regularly purchases Christmas or birthday presents for children or grandchildren on behalf of the adult as the adult would have done when he or she had capacity. However the value of the gift must be reasonable considering the adult's circumstances.

There are gifting provisions imposed by pension authorities such as Centrelink. Centrelink and other such authorities should be kept informed in relation to the adult's current circumstances.

Maintain adult's dependants - s 55, GAA Act

An administrator may provide from the adult's estate for the needs of a dependant of the adult. But, unless the Tribunal orders otherwise, what is provided must not be more than what is reasonable having regard to all the circumstances and, in particular, the adult's financial circumstances.

MULTIPLE APPOINTEES

Joint appointments
Two or more guardians or administrators for a matter are appointed as joint guardians or joint administrators for the matter unless the Tribunal orders otherwise: s 38, GAA Act.

If the appointment is made jointly, the power must be exercised unanimously. If it is impracticable or impossible to exercise power unanimously, one or more of the guardians or administrators or other interested person for the adult may apply for directions from the Tribunal. s 39.

Consultation and disagreements
Multiple appointees (including enduring power of attorneys and statutory health attorneys) must consult with one another on a regular basis to ensure the adult's interests are not prejudiced by a breakdown in communication between them: s 40, GAA Act.

If there is a disagreement between appointees (including enduring power of attorneys) about the way power for a non-health matter should be exercised which cannot be resolved by mediation by the adult guardian, then the adult guardian or any one of the appointees may apply to the Tribunal for directions: s 41, GAA Act.

If there is a disagreement about a health matter which cannot be resolved by mediation by the adult guardian, the adult guardian may exercise power for the health matter. If it does this the adult guardian must advise the Tribunal in writing of certain details: s 42, GAA Act.

"Disagreement" about a health matter means -

• a disagreement between a guardian or attorney for an adult and another person who is a guardian or attorney for the adult about the way power for the health matter should be exercised; or
• a disagreement between or among two or more eligible statutory health attorneys for an adult about which of them should be the adult's statutory health attorney or how power for the health matter should be exercised.

Successive appointments
If a previous appointment ends, the previous appointee must advise the next appointee on the ending of the previous appointment and the next appointee must advise the tribunal in writing of the change as soon as practicable, s 57, GAA Act.

BREACH OF GUARDIAN AND ADMINISTRATOR DUTIES

Remedies
If a person believes that a guardian or administrator is acting in excess of their powers or in breach of their duties, they may

• Make a complaint to the Office of the Adult Guardian who has the power to investigate complaints and suspend the appointment for up to 3 months to allow an application to come before the Tribunal;
• Apply to the Tribunal for review of the appointment (see fact sheet GAA -Review of Appointment);
• Apply to the Tribunal or a court for compensation for loss caused by the appointee's failure to comply with the GAA Act in the exercise of a power: s 59, GAA Act;
• Apply to the Supreme Court of Queensland for compensation for loss of a benefit in an Adult's estate because of a sale or other dealing with the Adult's property by an administrator: s 60, GAA Act.

Some provisions of the GAA Act also provide for a penalty for breach of that section, for example, s 78 Offence to exercise power for adult if no right to do so. A person may commence proceedings in the Magistrates Court for enforcement of that penalty. See ss 41, 42 and 44 of the Acts Interpretation Act 1954 (Qld) and ss 19 and 52 of the Justices Act 1886 (Qld).

1 penalty unit = $100: s 7, Penalties and Sentences Act 1992 (Qld).

Defence to breach of duty if unaware of change of power - s 56
If a guardian or administrator purports to exercise power without knowing of a change in the power, they do not incur any liability to the adult or anyone else because of the change.

"Change" of power for a matter, includes -

• Suspension of power for the matter; and
• Removal as guardian or administrator for the matter.

"Knowing" of a change of power, includes -

• Knowing of the happening of an event that changes the power (for example, where power is automatically revoked because the appointee becomes a paid carer under s  26); and
• Have reason to believe the change has happened.

Acting honestly and reasonably - s 58
The court may excuse a guardian's or administrator's failure to comply with duties if it considers the guardian or administrator has acted honestly and reasonably and ought fairly to be excused for the failure.

FURTHER INFORMATION

• 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
• "A guide for financial administrators" http://www.pt.qld.gov.au/pubs/docs/Guidefinadmin.pdf.
  

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