Introduction

This factsheet is part of a set of factsheets about guardianship, administration and other substituted decision making in relation to Adults with impaired capacity. It does not relate to decision making for children and minors. The fact sheets are written for Queensland lawyers who are unfamiliar with guardianship and administration laws in this jurisdiction.

The factsheets in this series are:

GAA - Purpose of Act and General Principles
GAA - Types of Substituted Decision Making
GAA - Capacity
GAA - Functions and Powers of the Tribunal
GAA - Application for Appointment of a Guardian or Administrator
GAA - Duties of Appointees and Remedies in Case of Breach
GAA - End of Appointment
GAA - Review of Appointment
GAA - Appealing a Tribunal Decision

WHAT IS GUARDIANSHIP AND ADMINISTRATION?

Guardianship and administration refers to the mechanisms which apply when an adult can no longer make decisions for themselves because they have lost the capacity to do so.

In those circumstances another person may be authorised to act on the adult's behalf under the Guardianship and Administration Act 2000 (Qld) (GAA Act) or the Powers of Attorney Act 1998 (Qld) (POA Act). This may be:

• On an informal basis by members of the adult's existing support network (whose decision may then be ratified or approved by the Queensland Civil and Administrative Tribunal under s 154 of the GAA Act);
• By an appointment made by the Queensland Civil and Administrative Tribunal for a guardian or administrator under the GAA Act;
• By an appointment made by the adult under an enduring power of attorney or advance health directive under the POA Act;
• Under a statutory health attorney under the POA Act; or
• By the Supreme Court of Queensland.

Substituted decision-making also occurs under the Mental Health Act 2000 (Qld), in relation to medical treatment for mental illness, and under the Uniform Civil Procedure Rules 1999 (Qld), in relation to people involved in civil legal proceedings. 

The focus of the guardianship and administration regime is on adults, not children, although there are provisions under the GAA Act for children regarding sterilisation.

RELEVANT QUEENSLAND LEGISLATION

Guardianship and Administration Act 2000 (Qld) This Act is focused on adults with impaired capacity. It seeks to strike a balance between an adult's autonomy in decision making and an adult's right to adequate and appropriate support for decision making.

Powers of Attorney Act 1998 (Qld) This Act relates to substituted decision making under powers of attorney, enduring powers of attorney, advance health directives and statutory health attorneys. It is to be read in conjunction with the Guardianship and Administration Act 2000.

Disability Services Act 2006 (Qld) This Act concerns the rights of people with a disability and the services provided to aid their health and wellbeing. A funded service provider who is providing services to an adult with an intellectual or cognitive disability may apply for approval to contain or seclude the Adult (restrictive practices).

Public Trustee Act 1978 (Qld) This Act establishes the office of the Public Trustee who may be appointed by the Tribunal as administrator for Adult's financial matters.

Mental Health Act 2000 (Qld) This Act authorises the involuntary assessment and treatment of a person with a mental illness. It has specific relevance in relation to the containment or seclusion of an adult who has an intellectual or cognitive disability (restrictive practices).

Trusts Act 1973 (Qld) This Act regulates the functions and powers of administrators and their power to only invest in authorised investments.

Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (formerly the Residential Services (Accommodation) Act 2002) This Act regulates residential service agreements where an Adult may live.

Residential Services (Accreditation) Act 2002 (Qld) This Act regulates the conduct of residential services where an adult may live.

Queensland Civil and Administrative Tribunal 2009 (Qld) This Act establishes the Queensland Civil and Administrative Tribunal (QCAT) which has jurisdiction to make decisions in relation to people with impaired capacity, such as the appointment of a guardian under the GAA Act.

This legislation can be accessed on http://www.legislation.qld.gov.au.

PRINCIPAL GOVERNMENT ENTITIES

The principal government entities are:

• The Adult Guardian, established under the GAA Act;
• The Public Trustee of Queensland, established under the Public Trustee Act 1978 (Qld);
• The Public Advocate (the systemic advocate for people with impaired capacity), established by the GAA Act;
• The Queensland Civil and Administrative Tribunal, established under theQueensland Civil and Administrative Tribunal Act 2009.

THE QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

From 1 December 2009, all matters under the GAA Act are heard by the Queensland Civil and Administrative Tribunal (QCAT).

The Tribunal's functions and powers include the appointment of substitute decision makers, or enabling the Tribunal to become a substituted decision maker itself, for adults with impaired capacity where informal supports no longer work.

In QCAT:

• Written reasons will be provided in every case;
• Appeals are to the appeal division of QCAT or, if the matter was initially determined by a judicial member of QCAT, to the Court of Appeal.

See GAA - Functions and Powers of the Tribunal factsheet for more information.

KEY PRINCIPLES

• For the Tribunal to have any jurisdiction, the adult in question must have "impaired capacity" for the matter. See GAA - Capacity for a detailed explanation.
• Any person or other entity that performs a function or exercises a power under the GAA Act in relation to an adult with impaired capacity must apply the general principles.
• If the matter relates to a health matter or special health matter, then the person or other entity must apply both the general principles and the health care principle.
• It is important when applying the GAA Act to always keep in mind the purpose of the GAA Act.

The General Principles, the Health Care Principle and the purpose of the Act are set out in full in our GAA - Purpose of Act and General Principles factsheet.

FURTHER INFORMATION

QCAT's website at http://www.qcat.qld.gov.au/ is an excellent source of information, including the Tribunal's procedure and forms.  In particular, please see the forms specific for guardianship and administration matters: http://www.qcat.qld.gov.au/forms.htm. There are also useful factsheets on guardianship and administration at http://www.qcat.qld.gov.au/publications.htm.

The Tribunal has also prepared a list (by subject category) of cases published on Austlii that best represent the law and procedures of the Tribunal. This can be found at http://www.qcat.qld.gov.au/administration-for-adults-matters-decisions-cases.htm.

Legislation is available on http://www.legislation.qld.gov.au.

The Guardianship section of the Department of Justice and Attorney-General website may also be of assistance at http://www.justice.qld.gov.au/17.htm.

This is a work in progress. It does not exhaustively cover all aspects of guardianship and administration law. If you have any questions or notice any inaccuracies, please contact QPILCH on (07) 3846 6317 or srs.qcatadmin@qpilch.org.au.

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