Introduction

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

This fact sheet summarises the functions and powers of the Queensland Civil and Administrative Tribunal (QCAT) in exercising jurisdiction under the Guardianship and Administration Act 2000 (Qld) (GAA Act).

JURISDICTION OF THE TRIBUNAL

QCAT has exclusive jurisdiction for the appointment of guardians and administrators for adults with impaired capacity. This is subject to section 245 of the GAA Act where the District or Supreme Court appoints an administrator pursuant to a settlement involving a person with impaired capacity: s 82(1), GAA Act.

In addition, QCAT has concurrent jurisdiction with the Supreme Court for enduring documents and attorneys under enduring documents: s 82(2), GAA 2000.

The powers of QCAT are generally limited to adults with impaired capacity, although there are some provisions in relation to people under the age of 18, namely, the advance appointment of guardians and administrators (s 13 and 13A, GAA Act) and sterilisation of a child (Chapter 5A, GAA Act).

FUNCTIONS OF THE TRIBUNAL

QCAT has the functions given to it by the Guardianship and Administration Act 2000 (Qld) (s 81, GAA Act). These include:

• making declarations about the capacity of an of an adult (or a guardian, administrator or attorney) for a matter under s 146,GAA Act;
• appointing a guardian and or administrator for an adult under s 12, GAA Act;
• reviewing the appointment of a guardian or administrator either upon application or on its own initiative under ss 28 and 29, GAA Act
• consider applications for a declaration, order, direction, recommendation or advice in relation to an adult about something in, or related to, the GAA Act or the Powers of Attorney Act 1998: s 115, GAA Act and s 60, Queensland Civil and Administrative Tribunal Act 2009 (Qld), for example:

o an order or advice in relation to a guardian, administrator, attorney (that is, an attorney appointed under an enduring document or a statutory health attorney) or an enduring document;

o a declaration about the validity or scope of an Enduring Power of Attorney;

• ratifying an exercise of power, or approving a proposed exercise of power, for a matter by an informal decision maker for an adult with impaired capacity for the matter under s 154 GAA Act
• suspending a guardianship or administration order if the Tribunal suspects that the appointed person is not competent under s 155, GAA Act.

QCAT also has the following special functions:

• making an advance appointment of a guardian or administrator for a person who is at least 17 1/2 years old but not yet 18 years old under ss 13 and 13A, GAA Act;
• consenting to the withholding or withdrawal of life-sustaining measures for an adult with impaired capacity for the health matter concerned under s 66A, GAA Act
• consenting to special health care for an adult with impaired capacity, or consenting to the donation of tissue, sterilisation, termination of pregnancy or experimental health care of an adult under Chapter 5, Part 3, GAA Act
• consenting to the sterilisation of a child with an impairment under Chapter 5A, GAA Act
• consenting to the use of restrictive practices, that is, the containment and seclusion of an adult with intellectual or cognitive disability under Chapter 5B, GAA Act
• registering an order made in another jurisdiction under s 169, GAA Act.
• reviewing a matter in which a decision has been made by the registrar.

PROCEDURAL POWERS

Generally speaking, the practice and procedure of the QCAT is set out under the Queensland Civil and Administration Tribunal Act 2009 (Qld). However, the Guardianship and Administration Act provides for some powers specific to guardianship and administration matters.

Interim orders

The Tribunal may make interim orders, without hearing and deciding the proceedings or otherwise complying with the requirements of the GAA Act, if it is satisfied that:

• there is an immediate risk of harm to the health, welfare or property of the adult concerned in an application, including because of the risk of abuse, exploitation or neglect of, or self-neglect by, the adult: s 129, GAA Act.

An interim order may only operate to a maximum of 3 months. The order can be renewed in exceptional circumstances.

However, an interim order may not include consent to special health care.

Please see also QCAT Presidential Direction No 3 of 2007 in relation to interim orders (http://www.qcat.qld.gov.au/practice-directions.htm).

Directions

Under s 114 of the GAA Act, QCAT may:

• direct a person undergo examination by a doctor or psychologist in the ordinary course of the doctor's medical practice or the psychologist's practice, including a direction that a party pay for the examination;
• direct the person the subject of the proceedings be brought before the Tribunal
• revoke either of these directions.

Such a direction must be complied with unless the person has a reasonable excuse.

A Tribunal may also:

• order a person to give information or material to the Tribunal: s 130, GAA Act.
• give advice or directions about the matter as it considers appropriate: s 138(1)(a), GAA Act
• make recommendations it considers appropriate about action an active party should take: s 138(1)(b), GAA Act.
• make directions about implementing the recommendation, upon application of a party: s 138(3), GAA Act.
• give directions to a former attorney for a matter for the adult: s 138AA, GAA Act

Limitation orders

Normally, QCAT proceedings are held in public and each active party is entitled to access a document or other information before the Tribunal.

However, QCAT has the power to make a limitation order if it is necessary to avoid serious harm or injustice to a person. A limitation order is defined at s 100 GAA Act as:

(a) an adult evidence order - an order to obtain relevant information from the adult concerned in the matter at a hearing in the absence of anyone else: s 106, GAA Act.
(b) a closure order - an order that the hearing be closed or certain people excluded: s 107, GAA Act
(c) a non-publication order - an order prohibiting the publication of information about a tribunal proceeding: s 108, GAA Act.
(d) a confidentiality order - an order to withhold information or documents from an active party: s 109, GAA Act.

Procedures regarding limitation orders, including the right to be heard in relation to a limitation order and appeals, are set out in sections 104 to 113 of the GAA Act.

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