Introduction

This factsheet outlines types of substituted decision making authorised by:

• The Guardianship and Administration Act 2000 (Qld) (GAA Act)
• The Powers of Attorney Act 1998 (Qld) (POA Act)
• The Mental Health Act 2000 (Qld) (MH Act); and
• The Uniform Civil Procedure Rules 1999 (Qld) (UCPR)

In most cases, before a substituted decision maker can be appointed or exercise his or her powers under the relevant Act, the adult must first have impaired capacity. The test under the GAA Act for impaired capacity is different to the test applied under the MH Act and is different again under the UCPR. Also, a person may have capacity for one matter but not another. Therefore, a person who requires an involuntary treatment order under the MH Act may not necessarily have impaired capacity for financial matters and require an administrator under the GAA Act.

It should also be remembered that impaired capacity is often only one of several criteria to be satisfied before a substituted decision-maker can be appointed.

A person with impaired capacity can have several substituted decision making mechanisms in place at the same time. The end of this factsheet considers the priority of these substituted decision makers.

UNDER THE GUARDIANSHIP AND ADMINISTRATION ACT 2000

The Queensland Civil and Administrative Tribunal may appoint a guardian or administrator for an adult with impaired decision making capacity. Under the GAA Act, a person has impaired capacity for a matter if they are incapable of: understanding the nature and effect of decisions about the matter, freely and voluntarily making decisions about the matter and communicating the decisions in some way (Schedule 4, GAA Act - See GAA - Capacity factsheet).  However, a guardian or administrator will only be appointed if there is a need for a decision and, without the appointment, the adult's needs or interests would suffer.

Most adults who have family, friends or other support will not need a formally appointed substituted decision-maker, as adults with these networks are considered to be capable of carrying on their lives.  The Tribunal will only intervene when there is no other way to guarantee the protection of an adult's interests. 

Guardianship order (ss 12, 33, GAA Act)
A guardian is someone appointed by the Tribunal to make decisions regarding the Adult's personal matters. A personal matter can relate to the Adult's care, health, welfare, where they live, who they live with, whether they work, what education or training they undertake, application for licence, day to day issues such as diet and dress, health care or legal matter. That is, not relating to the Adult's financial or property matters. The extent of the guardian's powers to make decisions in relation to these matters on behalf of the Adult is detailed in the particular order.

A guardianship order will usually specify the date upon which the appointment ends. An order is also subject to review by the Tribunal at least every 5 years.

Administration order (ss 12, 33, GAA Act)
An administrator is someone appointed by the Tribunal to make decisions regarding the Adult's financial matters. A financial matter relates to the adult's financial or property matters, for example paying the adult's maintenance and accommodation expenses, paying the adult's debts, receiving or recovering money payable to the adult, performing contracts, legal matters relating to the adult's financial or property matters and operating the adult's bank account. The extent of an administrator's powers to make decisions on behalf of the Adult is detailed in the particular order.

Like a guardianship order, an administration order will often specify the date upon which the appointment ends and is subject to review by the Tribunal at least every 5 years.

UNDER THE POWERS OF ATTORNEY ACT 1998

Under the POA Act, a person may, while they have capacity, appoint a person to make decisions on their behalf should they later lose capacity. These are known as enduring documents. There are also provisions for the automatic appointment of a substituted decision maker in relation to health matters (see health matter).

The definition of impaired capacity under the POA Act is the same as that used under the GAA Act. Key terms such as personal matter and financial matter also have similar meanings under the two acts.

Enduring Power of Attorney (s 32)
An enduring power of attorney (EPA) must be made by the Adult while they have capacity. They give people the opportunity to make decisions about who will take care of them when they no longer have capacity to take care of themselves.

Through an EPA, an adult may authorise one or more other persons to do anything in relation to one or more financial matters or personal matters (see financial matter and personal matter) for the adult that the adult could lawfully do if he or she had capacity. The EPA also sets out the terms or information about exercising that power.

Unlike an ordinary power of attorney, an EPA is not revoked upon the Adult's capacity becoming impaired and often powers under the EPA can only be exercised once a person has lost capacity. A power for a financial matter becomes immediately exercisable, unless otherwise specified, and will become exercisable for any period in which the Adult has impaired capacity. A power for a personal matter only becomes exercisable if the principal adult is under an impaired capacity (s 33, POA Act).

Advance Health Directive (s 35, POA Act)
An advance health directive is an enduring document in which an adult may specify their wishes in relation to future health care.

By an advance health directive, an adult principal may:

• give directions, about health matters and special health matters, for his or her future health care; and
• give information about his or her directions; and
• appoint one or more persons who are eligible attorneys to exercise power for a health matter for the principal in the event the directions prove inadequate; and
• provide terms or information about exercising the power.

An advance health directive operates only while the adult has impaired capacity for the matter covered by the direction (s 36(1), POA Act). Special criteria must be met if a direction to withhold or withdraw a life sustaining measure is to be followed (s 36(2), POA Act).

Statutory Health Attorneys (ss 62, 63, POA Act)
A statutory health attorney may make a decision for an adult with impaired capacity in relation to a health matter. It is an automatic appointment made under the POA Act.

A statutory health attorney is the first of the following people who is readily available and culturally appropriate to exercise power for a health matter:

• The spouse of the Adult if the relationship is close and continuing
• A person who is 18 years or more and who has the care of the adult and is not a paid carer of the adult
• A person who is 18 years or more and is a close friend or relation of the adult and is not a paid carer of the adult.

If no one is readily available and culturally appropriate then the Adult Guardian is the statutory health attorney.

If there is disagreement between two or more people concerning who should be the statutory health attorney which cannot be resolved by mediation, then the Adult Guardian may exercise power for the health matter (see s 42 of the GAA Act).

UNDER THE MENTAL HEALTH ACT 2000 (QLD)

The Mental Health Act 2000 (Qld) (MHA) sets out the mechanisms by which people with mental illness may be compelled to receive medical treatment. A mental illness is defined by that Act as a condition characterised by a clinically significant disturbance of thought, mood, perception or memory (s 12, MHA).

Involuntary treatment orders (s 108, MHA)
An involuntary treatment order (ITO) imposes treatment on a mentally ill person without their consent. An authorised doctor may make an ITO only if they are satisfied that all the treatment criteria set out in s 14 of the MHA apply to the patient. This includes that the person has a mental illness, that the illness requires immediate treatment, that because of the illness the person is at imminent risk, that there is no less restrictive way of ensuring the person receives appropriate treatment and that the person lacks capacity to consent to the treatment or has unreasonably refused treatment. Capacity under the MHA is defined in Schedule 2 and has a similar meaning to capacity under the GAA Act.

ITOs are reviewed within the first 6 weeks and then every 6 months by the Mental Health Review Tribunal.

UNDER THE UNIFORM CIVIL PROCEDURE RULES 1999 (QLD)

The Uniform Civil Procedure Rules 1999 (Qld) (UCPR) provides for the appointment of a substituted decision maker in civil legal proceedings where a person is under a "legal incapacity". 

Legal incapacity is defined in Schedule 2 of the Supreme Court of Queensland Act 1991 (Qld) as:

• A person who is not capable of making the decisions required of a litigant for conducting proceedings or who is deemed by an Act to be incapable of conducting proceedings; or
• A person under 18 years old.

Litigation Guardians (Rules 93-95, UCPR)
A person under a legal incapacity cannot commence or defend civil legal proceedings without a litigation guardian. A litigation guardian, also known as a case guardian, may be appointed by a court or by filing in the court registry the person's written consent to be litigation guardian of a party in the proceedings. For example, a person's administrator may be appointed as their litigation guardian.

The guardian's role is to stand in the place of the party under the legal incapacity and do anything in the proceedings required or permitted to be done by that party. A litigation guardian must have a solicitor or must themselves be a solicitor.

The litigation guardian (rather than the litigant) will bear the risk of costs if the litigation is unsuccessful.

PRIORITIES

The appointment of a substituted decision maker is not exclusive. For example, a person can have an appointed guardian, an appointed administrator and be subject to an ITO all at the same time. What happens if the wishes of the substituted decision makers conflict?

Guardianship or administration order vs enduring document
Generally, the appointment of guardians and administrators under the GAA Act take precedence over enduring documents except where the adult has impaired capacity for a health matter (s 22, GAA Act). For example, if a guardian or administrator has been appointed, an EPA can only be exercised to the extent authorised by the Queensland Civil and Administrative Tribunal.

The order of priority where the adult has impaired capacity for a health matter is:

• Direction given in an advance health directive
• Guardian appointed by the Tribunal
• Attorney appointed by the most recent enduring document (i.e., enduring power of attorney or advance health directive)
• Statutory health attorney (s 66, GAA Act).

This order of priority does not apply where the health matter relates to health care which is considered urgent and which may be carried out without consent (Ch 5, Pt 2 Div 1, GAA Act). 

The GAA Act is to be read in conjunction with the POA Act and the GAA Act will prevail if there is an inconsistency (s 8, GAA Act; s 6A POA Act).

ITO vs enduring document
An EPA will not stop treatment under a properly made involuntary treatment order.  This is because a person's own consent only is relevant for determining whether the person lacks capacity to consent to the treatment or has unreasonably refused treatment (s 14(2), MHA). Therefore a substituted decision maker's consent under an EPA is ineffective.

However, a treatment plan for an involuntary patient should take into account any existing plan of treatment or advanced health directive (s 124(4), MHA).

Further, if an involuntary patient under the MHA has given a direction about their health care or special health care under an advance health directive or otherwise, then an interpretation of the MHA that is consistent with the POA Act and the direction is to be preferred to any other meaning. The MHA prevails in the case of inconsistency (s 38, POA Act).

ITO vs guardianship order
In assessing whether an ITO is appropriate, a person's own consent only is relevant for determining whether the person lacks capacity to consent to the treatment or has unreasonably refused treatment (s 14(2), MHA). Therefore, if a guardian has been appointed under the GAA Act, the guardian's consent to the person's treatment is not effective.

Enduring document vs common law
The POA Act does not affect the common law recognition of instructions about health care given by an adult that are not given in an advance health directive (s 39, POA 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