GAA – Review of appointment

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): s28 GAA Act.

The Tribunal may review an appointment for a guardian or administrator:

• At any time on its own initiative: s29(a) GAA Act.
• For a guardian (other than restrictive practice matter) on the application of any of the following: s29(b) GAA Act:

• the adult;
• an interested person for the adult;
• the Public Trustee;
• a trustee company under the Trustee Companies Act 1968.

An “interested person” means “a person who has a sufficient and genuine concern for the rights and interests of the other person”: Schedule 4 GAA Act.

Dismissal of application

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 our Unmeritorious proceedings and conduct causing disadvantage in QCAT fact sheet 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: s138A GAA Act and s49 of the QCAT 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 it is determined that the Adult has capacity for the matter, then the existing appointment must be revoked: s31(2) GAA Act. See our GAA – Capacity and GAA – End of appointment fact sheets for further information.

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: s31(2) GAA Act.

Orders tribunal can make if appointment is still required: s31(3) GAA Act

If the Tribunal is satisfied there are appropriate grounds for an appointment to continue, it may either:

• continue its order making the appointment;
• change the terms of the appointment;
• remove the appointee; and/or
• make a new appointment.

However, the Tribunal may only remove an appointee, other than the Public Guardian if the Tribunal considers:

• The appointee is no longer competent; or
• Another person is more appropriate for the appointment

An appointee is no longer competent if, for example:

• a relevant interest of the adult has not been, or is not being adequately protected; or
• the appointee has neglected the appointee’s duties or abused the appointee’s powers, whether generally or in relation to a specific power; or
• 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); or
• the appointee has otherwise contravened the Act.

The Tribunal may make an order removing the Public Guardian as an appointee if, having regard to the appropriateness considerations, there is an appropriate person available for appointment.

See for example: Re MDC [2004] QGAAT 5 The current administrators were deemed no longer competent as they had entered into conflict transactions without 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 conduct of the administrators in revoking their appointment: not adhering to reporting requirements; failure 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 administrators.

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.