GAA – Types of substituted decision making

This fact sheet outlines types of substituted decision making authorised by:

• The Guardianship and Administration Act 2000 (Qld) (GAA Act)
• The Public Guardian Act 2014 (Qld) (PG Act)
• The Powers of Attorney Act 1998 (Qld) (POA Act)
• The Mental Health Act 2016 (Qld) (MHA); and
• The Uniform Civil Procedure Rules 1999 (Qld) (UCPR)

In most cases, before a substituted decision maker can be appointed or exercise their powers under the relevant Act, the Adult must first have impaired capacity.

A person may have capacity for one ‘matter’ but not another. For example, a person who lacks capacity to consent to assessment or treatment under the MHA 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 under the GAA Act.

A person with impaired capacity can have several substituted decision-making mechanisms in place at the same time.

Under the Guardianship and Administration Act 2000

The Queensland Civil and Administrative Tribunal (the Tribunal) may appoint a guardian and/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 fact sheet). 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 and 33 GAA Act)

A guardian is someone appointed by the Tribunal to make decisions regarding the Adult’s personal matters, but not a ‘special personal matter’. A personal matter can relate to the Adult’s care, health, welfare, where they live, who they live with, services provided to the Adult, whether they work, what education or training they undertake, application for a licence, day to day issues such as diet and dress, health care, whether to consent to a forensic examination, legal matter (so long as the legal matter does not concern the Adult’s finances or property), restrictive practices, who they have visits or contact with, and advocacy relating to their care and welfare. 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 special personal matter includes making or revoking a will or power of attorney, voting, adopting, consenting to marriage or registered relationship and decisions concerning surrogacy.

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 and 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 accommodation expenses or 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 (s32 POA Act)

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, as if 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 a general 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.

Advance Health Directive (s35 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 and 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, health provider of the Adult, or service provider for a residential service where the Adult lives;
• 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, health provider of the Adult, or service provider for a residential service where the Adult lives.

If no one is readily available and culturally appropriate then the Public 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 Public Guardian may exercise power for the health matter (see s42 of the GAA Act).

Under the Mental Health Act 2016 (Qld)

The Mental Health Act 2016(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 (s10 MHA).

Treatment Authorities (s18 and 413 MHA)

A treatment authority (TA) imposes treatment on a mentally ill person without their consent. An authorised doctor may make a TA only if they are satisfied that all the treatment criteria set out in s12 of the MHA apply to the patient. This includes:

• that the person has a mental illness,
• does not have capacity to consent to be treated for the illness,
• is at either imminent harm to themselves or others, or suffers serious mental or physical deterioration without treatment, and
• there is no less restrictive way of ensuring the person receives appropriate treatment.

TAs are reviewed initially within 28 days after the authority is made, every 6 months for the first year, and thereafter at intervals of not more than 12 months.

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 called a ‘litigation guardian’ in civil legal proceedings where a person is “under a legal incapacity”, defined in Schedule 5 of the Supreme Court of Queensland Act 1991 (Qld) to mean “a person with impaired capacity” or “a young person” (an individual under 18 years).

A “person with impaired capacity” is then defined 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.

A person under a legal incapacity cannot commence or defend civil legal proceedings without a litigation guardian. A litigation 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 litigation 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 a TA 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 (s22 G AA 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 (s66 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 (s8 GAA Act, s6A POA Act, s8 PG Act).

Treatment Authority (TA) vs enduring document

An EPA will not stop treatment under a properly made TA. This is because a person’s own consent is only relevant for determining whether the person lacks capacity to consent to the treatment or has unreasonably refused treatment (ss12(2), (3) MHA). Therefore, a substituted decision maker’s consent under an EPA is ineffective.

However, to the extent practicable, the decisions in relation to the treatment and care of the patient must be made in consultation with the patient, the patient’s family, carers and other support persons, subject to the patient’s right to privacy (s 23(5) MHA).

In deciding the nature and extent of the treatment and care to be provided to a person under a treatment authority, the doctor must discuss the treatment and care to be provided to the person and have regard to the views, wishes and preferences of the person, including those in an advance health directive (s 53(2) MHA). If a doctor decides not to follow an advanced health directive they must provide reasons to the person why they came to that decision (s 54(2 MHA)).

Furthermore, 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).

TA vs guardianship order

As noted above, in assessing whether a TA is appropriate, a person’s own consent is only relevant for determining whether the person lacks capacity to consent to the treatment or has unreasonably refused treatment (s 12(2), (3) 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 is not given in an advance health directive (s39 POA Act).

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.