GAA – Guardianship and Administration toolkit

This fact sheet is part of a set of fact sheets 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 persons who are unfamiliar with guardianship and administration laws in this jurisdiction.

The fact sheets 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

 

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 (see GAA – Capacity fact sheet).

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 s154 of the GAA Act);
• By the appointment of a Guardian or Administrator by the Queensland Civil and Administrative Tribunal 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;
• By 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 2016 (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.

Public Guardian Act 2014 (Qld)

This Act establishes the Public Guardian, an agency to promote and protect the rights and interests of adults with impaired capacity, as well as certain children. It is to be read in conjunction with the Guardianship and Administration Act 2000.

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 by 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 be authorised by the Queensland Civil and Administrative Tribunal (QCAT) to contain, seclude, restrain or restrict access to 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 2016 (Qld)

This Act may authorise the involuntary assessment and treatment of a person with a mental illness, to the exclusion of substituted decision making under the Guardianship and Administration Act 2000, the Public Guardian Act 2014 or the Powers of Attorney Act 1998.

Trusts Act 1973 (Qld)

This Act regulates the functions and powers of trustees, including the Public Trustee, and provides the standard for authorised investments by administrators appointed under the Guardianship and Administration Act 2000.

Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (formerly the Residential Services (Accommodation) Act 2002)

This Act regulates the giving of a notice under a rooming accommodation agreement to a person with impaired capacity for financial matters or limited capacity to manage their own affairs.

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

This Act establishes 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 here.

Principal government entities

The principal government entities are:

• The Public Guardian, established under the Public Guardian Act 2014 (Qld);
• 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 Guardianship and Administration Act 2000;
• The Queensland Civil and Administrative Tribunal, established under the Queensland Civil and Administrative Tribunal Act 2009.

The Queensland Civil and Administrative Tribunal

From 1 December 2009, all matters under the Guardianship and Administration Act 2000 (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 for adults with impaired capacity where informal supports no longer work.

See GAA – Functions and powers of the Tribunal fact sheet for more information.

Key principles

• 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 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

The QCAT website is an excellent source of information, and includes an outline of the Tribunal’s procedures and forms.

The Tribunal has also prepared a list (by subject category) of cases published on Austlii that best represents the law and procedures of the Tribunal.

Legislation is available here.

The Guardianship section of the Department of Justice and Attorney-General website may also be of assistance.

This resource is current as of 30 June 2023

The information in this resource is for general information purposes only and should not be relied on as legal advice. If you need legal advice, please contact LawRight or another lawyer. LawRight can only give advice to people who are eligible for our services.