Introduction

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

This fact sheet provides an outline of the law in relation to seeking the review of the appointment of a guardian or administrator. Applications for review are made to the Queensland Civil and Administrative Tribunal (QCAT).

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

WHEN WILL AN APPOINTMENT BE REVIEWED?

The Tribunal must review an appointment:

• At the end of the appointment (in accordance with the order) but at least every 5 years (except in relation to appointment of the public trustee or a trustee company) - s 28, GAA Act
• At any time on its own initiative - s 29(a)
• On the application of any of the following: - s 29(b)
  o the adult;
  o an interested person for the adult;
  o the public trustee;
  o a trustee company under the Trustee Companies Act 1968.

An "interested person" means "a person who has a sufficient and continuing interest in the other person" (Sch 4).

If necessary, the Tribunal may decide whether a person is an interested person for another person - s 126(1).

A person who is determined by the Tribunal not to be an interested person may ask for reasons and the Tribunal must give the person written reasons for its decision - s 126(2).

Dismissal of application
Prior to 1 December 2009, Presidential Direction No 2 of 2002 of the Guardianship and Administration Tribunal provided that the review of an appointment would normally not be entertained upon the application of an interested person before the end of the appointment unless:
(a) new and relevant information has become available since the hearing;
(b) a relevant change in circumstance has occurred since the hearing; or
(c) relevant information that was not presented to the Tribunal at the hearing has become available.

That presidential direction no longer exists under QCAT.

Under s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), the Tribunal has a power to dismiss or strike out proceedings it considers are:

• Frivolous, vexatious, or misconceived;
• Lacking in substance; or
• Otherwise an abuse of process.

Please see QCAT - Unmeritorious proceedings and conduct causing disadvantage for more information.  However, unlike other applications to QCAT, a guardianship and administration application which has previously been struck out or dismissed will not prevent the same kind of application being made again: s 138A, GAA Act.

Dismissal can be on the Tribunal's own initiative or upon the application of an active party.

Alternatives to seeking review
If the issue in question is whether the Adult has capacity for the matter, then it may be more appropriate to seek a declaration of capacity. If the Adult has capacity for the matter, then the appointment must be revoked: s 31(1), GAA Act. See GAA - Capacity and GAA - End of Appointment.

REVOCATION UPON REVIEW

The Tribunal must revoke the appointment under review unless the Tribunal is satisfied that it would make an appointment for the Adult, as if an application for new appointment had been made:  s 31(2), GAA Act.

ORDERS TRIBUNAL CAN MAKE IF APPOINTMENT IS STILL REQUIRED - S 31(3)

If the Tribunal is satisfied there are appropriate grounds for an appointment to continue, it may either:
(a) continue its order making the appointment
(b) change the terms of the appointment
(c) remove the appointee
(d) make a new appointment.

Removal of appointee - s 31(4)
However, the Tribunal may only remove the appointee if the tribunal considers -
(a) The appointee is No longer competent; or
(b) Another person is more appropriate for the appointment

No longer competent - s 31(5)
An appointee is No longer competent if, for example -
a. a relevant interest of the adult has not been, or is not being adequately protected; or
b. the appointee has neglected the appointee's duties or abused the appointee's powers, whether generally or in relation to a specific power; or
c. the appointee is an administrator appointed for a matter involving an interest in land and the appointee fails to advise the registrar of titles of the appointment as required under section 21(1);
d. the appointee has otherwise contravened the Act.

See:
Re MDC [2004] QGAAT 5
The current administrators were deemed on longer competent as they had entered into conflict transactions which did not have the prior approval of the Tribunal, had not kept appropriate records and had failed to comply with the orders of the Tribunal. The Public Trustee was appointed as no other party was appropriate to assume the responsibilities as administrator.

Re MAF [2008] QGAAT 42
Outlines types of evidence the Tribunal will have regard to when considering a review under s 31. The Tribunal took into account the following factors in appointing the Public Trustee: not adhering to reporting requirements; failure of the administrators to maintain separation between their financial affairs and those of the Adult's; significant disagreements between family administrators; and lack of insight into the duties of the administrator.

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