Toolkit: Enforcing QCAT or Magistrates Court Money Orders in the Magistrates Court

LawRight has created a self-help Toolkit for individuals who want to enforce a judgment, decision or order made by the Queensland Civil and Administrative Tribunal or the Magistrates Court that requires someone to pay them a sum of money (Money Order).

The Toolkit explains:

• What your options might be if the Debtor does not comply with the Money Order;
• What an Enforcement Hearing is and how to apply for one; and
• How to apply for an Enforcement Warrant.

Please note that the information in this Toolkit is for general information purposes only. The law, procedure and other information this Toolkit was based on could have changed. If you are unsure of anything in the Toolkit or need help to apply this information to your specific circumstances, you should seek legal advice.

Toolkit template and example forms

You can download Word versions of the template and example forms in the Toolkit here:

Before starting Enforcement Proceedings

1. Letter of demand
2. Letter attaching Statement of Financial Position

Enforcement Hearings

3. Application for Enforcement Hearing
4. Affidavit supporting Application for Enforcement Hearing
5. Certificate of Exhibit for Affidavits
6. Enforcement Hearing Summons
7. Affidavit of Service of Enforcement Hearing Summons

Enforcement Warrants

8. Application for Enforcement Warrant or Instalment Order
9. Statement supporting Application for Enforcement Warrant or Instalment Order
10. Certificate of Exhibit for Statement supporting Application for Enforcement Warrant or Instalment Order
11. Blank Form 75 Warrant for Seizure and Sale of Property
12. Blank Form 76 Warrant for Redirection of Debt
13. Blank Form 77 Warrant for Regular Redirection
14. Blank Form 78 Warrant for Redirection of Earnings
15. Blank Form 79 Notice to Employer for Redirection of Earnings
16. Blank Form 80 Notice that Debtor Not Employee
17. Blank Form 82 Order Authorising Payment by Instalments

You can also find blank Court forms on the Queensland Courts website: https://www.courts.qld.gov.au/about/forms.

This page was last updated 30 October 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.

Applying to QCAT for review of a Disability Worker Screening Clearance decision

The Queensland Civil and Administrative Tribunal (QCAT) can review certain decisions made under the Disability Services Act 2006 (Qld) (DS Act).

This factsheet is written for persons who are unfamiliar with that legislation.

Disability Worker Screening

• The Department of Child Safety, Seniors and Disability Services (Disability Services) is a public service unit responsible for regulating the issue of Disability Worker Screening Clearances (DWS Clearances), which are mandatory for people employed or volunteering in certain positions that involve working with people with disability.
• Under the DS Act, DWS Clearances are issued to eligible persons working or volunteering in regulated areas, including services provided by Disability Services, funded non-government service providers or NDIS non-government service providers.
• When Disability Services receives a DWS Clearance application, Disability Services must either issue a positive notice (granting DWS Clearance) or an exclusion (refusing to grant DWS Clearance) (sections 89 and 90 of the DS Act).
• In some cases, Disability Services must issue a positive notice unless the case is exceptional (section 92 of the DS Act). For example, this may occur if a person has been convicted of an offence that is not a serious offence (as defined in Schedule 2 of the Disability Services Regulation 2017 (Qld)).
• In other cases, Disability Services must issue an exclusion unless the case is exceptional (section 91 of the DS Act). For example, this may occur if a person has been convicted of a serious offence, is subject to a temporary offender prohibition order or an interim sexual offender order.
• Disability Services can impose an interim bar on an applicant when they apply for a disability screening clearance if they have been charged with a disqualifying offence that has not been dealt with and they were an adult when the offence is alleged to have been committed. The applicant will receive a notice that states the interim bar is imposed, the reasons for imposing the interim bar and the effect of the interim bar (sections 81 to 85 of the DS Act).
• Disability Services can also suspend a clearance if a person who holds a clearance is charged with a disqualifying offence that has not been dealt with and they were an adult when the offence is alleged to have been committed. The person will receive a suspension notice that states the person’s clearance is suspended, the reasons for the suspension, how long the suspension will continue and the effect of the suspension.
• All of the decisions described above are decisions that can be reviewed (sections 138ZR to 138ZY of the DS Act).

Who can apply for review?

• A person dissatisfied with a reviewable decision may apply for review. The review process includes:

1. 1. 1. An internal review undertaken by an independent, senior officer from Disability Services. Disability Services must notify the applicant of the outcome within 28 days of receiving the application (Disability Services may extend this time by a further 28 days).
      2. If a person remains dissatisfied with the outcome of the internal review, external review may be sought through QCAT. A QCAT review may only occur after an internal review has taken place.

• A disqualified person cannot apply to have the decision reviewed. The only exception to this is in the case of mistaken identity (see full list of disqualifying offences in Schedule 2 Disability Services Regulation 2017 (Qld)). If a person becomes disqualified during the internal or QCAT review process, the review application must be dismissed.

Applying to QCAT for review of a Disability Worker Screening Clearance decision

• The person who wants the decision reviewed by QCAT (the applicant) must complete a QCAT Form 23 – Application to review a decision. A copy of the decision and reasons must also be provided to QCAT with the Form 23;
• The applicant must file two (2) copies with QCAT. QCAT will return one of the copies, which must then be served on (given to) Disability Services;
• There is a filing fee for review of a Disability Services decision in QCAT and for filing an application for leave to appeal/appeal. QCAT’s filing fees can be found online.
• A fee waiver or reduction may be available in circumstances of financial hardship.

Costs

• Generally in QCAT, parties bear their own costs however in certain circumstances, a cost order may be made.
• For information about costs orders, refer to the Costs in QCAT factsheet on the LawRight website.

What is the limitation period to apply to QCAT?

• A limitation period is a length of time within which legal action must begin. If legal action is not started within that time, a person may be prevented from commencing any action, even if it has legal merit.
• A person applying to QCAT for review of a DWS Clearance decision must file a review application in QCAT within 28 days from the day the person receives notice of the decision (section 138ZW of the DS Act and section 33 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act)).
• QCAT may grant an extension of time for a person to file a review application in exceptional circumstances (section 61 of the QCAT Act).

QCAT review of Disability Worker Screening related decisions

• QCAT decides review applications by way of a fresh hearing (section 20 of the QCAT Act). This means that the Tribunal can consider new evidence which was not before the original decision-maker.
• The principal consideration QCAT must apply under the law is that people with a disability have the right to live lives free from abuse, violence, neglect or exploitation, including financial abuse or exploitation (section 41 of the DS Act).
• This means that the right of people with disability to be protected from risk of harm is given more importance than the impact not having a DWS Clearance may have on the applicant.
• QCAT applies the law set out in the DS Act. For example, if QCAT is reviewing a decision to cancel a DWS Clearance because a person’s police information has changed, QCAT must consider the matters set out in subdivision 3 of the DS Act). This includes:

• If the police information is about a conviction or a charge;
• If the alleged offence is a serious or disqualifying offence;
• When the offence is alleged to have been committed;
• The nature of the offence; and
• The sentence imposed by a court and the court’s reasons for its decision.

• When exercising its review jurisdiction, QCAT considers if Disability Services made the correct decision in assessing the risk of harm to people with disability if a DWS Clearance is granted to a person, based on the merits of each case (section 19 of the QCAT Act).

Risk and protective factors

• Each case is different. QCAT considers many factors to decide if a risk of harm to people with disability is likely to materialise if a DWS Clearance is granted to a person. These factors are called risk factors and protective factors.
• Examples of risk factors include a person’s:

• Offending behaviour;
• History of abuse, neglect, drugs or alcohol issues;
• History of fractured relationships; and
• Lack of remorse and insight into the offending behaviour.

• Examples of protective factors include:

• Evidence of steps taken by a person to manage the causes of the offending behaviour;
• Evidence from a doctor or psychologist that a person is suitable to work with people with disability;
• A person’s honesty and insight into the offending behaviour; and
• A person’s supportive and stable relationships.

• QCAT will not allow a person to hold a DWS Clearance if that would expose people with disability to an unacceptable risk of harm.

QCAT pre-hearing process

• When QCAT receives a valid application seeking review of a DWS Clearance decision (QCAT Form 23), QCAT will make directions.
• Within 28 days from receiving a copy of the review application, Disability Services must file in QCAT a written statement with reasons for the decision (section 21 of the QCAT Act).
• Disability Service’s statement of reasons includes all documents and information that Disability Services used to make its decision, including for example, information received from the police or disciplinary information.
• QCAT may make orders about how a review application will progress and direct the parties to attend one or more compulsory conferences.
• QCAT cannot suspend a Disability Service decision until a review application is decided (section 109 of the DS Act). This means that the filing of a review application in QCAT does not affect the operation of the decision of Disability Service.

QCAT hearing

• The hearing of a DWS Clearance review application is held in public, unless a specific order is sought and granted by QCAT.
• The parties present at a hearing are usually the applicant, a representative from Disability Services, lawyers if the parties are legally represented, support persons and witnesses while they give evidence.
• QCAT decisions involving vulnerable people are de-identified if they are published, to protect the identity of these parties. However, other details of the case may be published unless QCAT makes a non-publication order.

Post hearing process

• QCAT may decide a review application at the hearing or deliver its decision at a later date.
• When deciding the application, QCAT may either:

• Confirm or amend the exclusion;
• Set aside the decision and make a substitute decision; or
• Set aside the decision and return the matter to the Department for reconsideration.

• If QCAT grants a review application, the applicant must liaise with Disability Services to have a DWS Clearance issued. A QCAT decision to grant a review application does not automatically issue a person’s DWS Clearance.

Appeals

• Appeals are very technical legal proceedings. Appeal rights, either to the QCAT Appeal Tribunal or to the Queensland Court of Appeal, will depend on whether the appeal relates to a question of law or fact, and whether a matter was heard by a judicial member.
• If a person is considering appealing a QCAT decision, it is strongly recommended that the person apply for reasons for the decision and obtain legal advice before filing an appeal.
• A person can request reasons for a QCAT decision within 14 days from the decision taking effect (section 122 of the QCAT Act). A decision generally takes effect on the date it is made, unless QCAT provides otherwise.
• For more information, refer to the Appealing a QCAT decision factsheet on the LawRight website.

Other resources

• QCAT decisions about DWS Clearance review proceedings are published by the Queensland Supreme Court Library and can be found here.

This resource is current as of 21 February 2024

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.

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.

GAA – Purpose of Act and general principles

If you are unfamiliar with guardianship and administration law, you may want to first read the GAA – Guardianship and Administration toolkit.

It is important when applying the Guardianship and Administration Act 2000 (Qld) (GAA Act) to always keep in mind the purpose of the Act. It is also important to understand that anyone who purports to perform a function or exercise a power under the Act must apply the General Principles, and if appropriate, the Health Care Principle.

This fact sheet sets out the purpose of the GAA Act, the General Principles and the Health Care Principle.

Intent of the Guardianship and Administration Act 2000

Section 5 of the GAA Act acknowledges the following:

• an Adult’s right to make decisions is fundamental to the Adult’s inherent dignity;
• the right to make decisions includes the right to make decisions with which others may not agree;
• the capacity of an Adult with impaired capacity to make decisions may differ according to:

• the type of decision to be made, including, for example, the complexity of the decision to be made; and
• the support available from members of the Adult’s existing support network;

• the right of an Adult with impaired capacity to make decisions should be restricted, and interfered with, to the least possible extent;
• an Adult with impaired capacity has a right to adequate and appropriate support for decision making.

Section 6 provides that the GAA Act seeks to strike an appropriate balance between:

• the right of an Adult with impaired capacity to the greatest possible degree of autonomy in decision making; and
• the Adult’s right to adequate and appropriate support for decision making.

Application of general principles and health care principles

Section 11B provides that a 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. For example, if an Adult has impaired capacity for a matter, a guardian or administrator who may exercise power for the matter must apply the general principles. The Tribunal is also bound to apply the general principles when making a decision in relation to an Adult.

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 principles.

General principles – s 11B(3)

The general principles, which can be found in s 11B(3) of the GAA Act, are set out below.

1 Presumption of capacity

An Adult is presumed to have capacity for a matter.

2 Same human rights

1. An Adult’s inherent dignity and worth, and rights, must be recognised and taken into account.
2. The right of all adults to the same human rights and fundamental freedoms, regardless of a particular Adult’s capacity, must be recognised and taken into account.
3. There are principles on which an Adult’s human rights and fundamental freedoms are based, and these principles should inform the way those rights and freedoms are taken into account.

3 Empowering the Adult to exercise human rights and fundamental freedoms

1. An adult’s right to exercise their human rights and fundamental freedoms must be taken into account.
2. The importance of encouraging and supporting an adult to perform social roles valued in society, to live a life in the general community and to take part in activities enjoyed by the community and to achieve maximum potential and to become as self-reliant as practicable, must be taken into account.
3. An Adult’s right to participate to the greatest extent practicable in the development of policies, programs and services for people with impaired capacity must be taken into account.

4 Maintenance of the Adult’s existing supportive relationships

1. The importance of maintaining an Adult’s existing supportive relationships must be taken into account.
2. The role of families, carers and other significant persons in the Adult’s life to support the Adult to make decisions should be acknowledged and respected.

5 Maintenance of the Adult’s cultural and linguistic environment and values

1. The importance of maintaining an Adult’s cultural and linguistic environment, and set of values (including any religious beliefs), must be taken into account.
2. For an Adult who is an Aboriginal or a Torres Strait Islander, the importance of maintaining the Adult’s Aboriginal or Torres Strait Islander cultural and linguistic environment, and set of values (including Aboriginal tradition or Island custom), must be taken into account.

Notes:

• Aboriginal tradition means the body of traditions, observances, customs and beliefs of Aboriginal people generally or of a particular community or group of Aboriginal people, and includes any such traditions, observances, customs and beliefs relating to particular persons, areas, objects or relationships-see the Acts Interpretation Act 1954, Schedule 1.
• Island custom, known in the Torres Strait as Ailan Kastom, means the body of customs, traditions, observances and beliefs of Torres Strait Islanders generally or of a particular community or group of Torres Strait Islanders, and includes any such customs, traditions, observances and beliefs relating to particular persons, areas, objects or relationships-see the Acts Interpretation Act 1954, section 36.

6 Respect for privacy

1. An Adult’s privacy must be taken into account and respected.
2. An Adult’s personal information, including health information, must be protected on the same basis as other people’s personal information is protected.

7 Liberty and security

1. An Adult’s right to liberty and security on an equal basis with others must be taken into account.
2. An Adult should not be deprived of the Adult’s liberty except in accordance with the law.

8 Maximising an Adult’s participation in decision making

1. An Adult’s right to participate, to the greatest extent practicable, in decisions affecting the Adult’s life must be recognised and taken into account.
2. An Adult must be given support and access to information necessary to enable the Adult to make or participate in decisions affecting the Adult’s life.
3. An Adult must be given the support necessary to enable the Adult to communicate the Adult’s decisions.
4. To the greatest extent practicable, a person or other entity, in exercising power for a matter for an Adult, must seek the Adult’s views, wishes and preferences.
5. An Adult’s views, wishes and preferences may be expressed orally, in writing or in another way, including, for example, by conduct.
6. An Adult is not to be treated as unable to make a decision about a matter unless all practicable steps have been taken to provide the Adult with the support and access to information necessary to make and communicate a decision.

9 Performance of functions and exercise of powers

A person or other entity, in performing a function or exercising a power in relation to an Adult, or in making a decision for an Adult on an informal basis, must do so in a way that promotes and safeguards the Adult’s rights, interests and opportunities; and in the way that is least restrictive of the Adult’s rights, interests and opportunities.

10 Structured decision making

In applying general principle 9, a person or other entity, in performing a function or exercising a power in relation to an Adult, or in making a decision for an Adult on an informal basis, must:

1. Firstly, recognise and preserve, to the greatest extent practicable, the Adult’s right to make the adult’s own decision; and if possible, support the Adult to make a decision.
2. Secondly, recognise and take into account any views, wishes and preferences expressed or demonstrated by the Adult.
3. Thirdly, if the Adult’s views, wishes and preferences cannot be determined, use the principle of substituted judgment so that if, from the Adult’s views, wishes and preferences, expressed or demonstrated when the Adult had capacity, it is reasonably practicable to work out what the Adult’s views, wishes and preferences would be, the person or other entity must recognise and take into account what the person or other entity considers the adult’s views, wishes and preferences would be.
4. Fourthly, once the person or other entity has recognised and taken into account the matters mentioned above, the person or other entity may perform the function, exercise the power or make the decision

Health Care Principles – s 11C

The health care principles can be found in s 11C of the GAA Act.

The health care principles must be applied by a person or other entity that performs a function or exercises a power for a health matter or a special health matter.

The health care principles must be applied to make a decision for an Adult about prescribed special health care.

Health care principles

1 Application of general principles

A person or other entity that performs a function or exercises a power for a health matter or a special health matter in relation to an Adult must also apply the general principles.

2 Same human rights and fundamental freedoms

The principle of non-discrimination requires that all Adults be offered appropriate health care, including preventative care, without regard to a particular Adult’s capacity; and any consent to or refusal of health care for an Adult must take into account the principles of respect for inherent dignity and worth, individual autonomy and independence of persons.

3 Performance of functions and exercise of powers

A person or other entity must take into account:

1. Information given by the Adult’s health provider; and
2. If the Adult has a medical condition, the nature of the medical condition and the Adult’s prognosis; and
3. Any alternative health care that is available; and
4. The nature and degree of any significant risks associated with the proposed health care; and
5. Whether the health care can be postponed because a better health care option may become available within a reasonable time or the Adult is likely to become capable of making the Adult’s own decision about the health care; and
6. The consequences for the Adult if the proposed health care is not carried out; and
7. Consideration of the benefits versus the burdens of the proposed health care; and
8. The effect of the proposed health care on the Adult’s dignity and autonomy.

4 Substituted judgement

The views and wishes of an Adult expressed when the Adult had capacity may also be expressed in an advanced health directive; or by a consent to, or refusal of, health care given at a time when the Adult had capacity to make decisions about the health care.

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.

GAA – Capacity

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

The power of the Queensland Civil and Administrative Tribunal (QCAT) revolves around whether the Adult has “impaired capacity”. If an Adult has capacity, then the Tribunal lacks jurisdiction to make any orders with respect to that person.

It is, therefore, important that the test for capacity is understood and correctly applied.

Meaning of impaired capacity

Schedule 4 of the Guardianship and Administration Act 2000 (Qld) (GAA Act) provides:

• Impaired capacity, for a person for a matter, means the person does not have capacity for the matter.
• Capacity for a person for a matter, means that the person is capable of:
  • Understanding the nature and effect of decisions about the matter; and
  • Freely and voluntarily making decisions about the matter; and
  • Communicating the decisions in some way.

Legal test

The General Principles presume that the Adult has capacity. There must be sufficient evidence of incapacity to rebut this presumption. In most cases, an application to the Tribunal will be for a particular issue, for example, whether the applicant has capacity to sell their house.

It is only necessary for the Tribunal to look at whether the Adult has capacity for the particular issue in question and not whether the Adult has capacity for all matters.

Understanding the nature and effect of decisions about the matter

The Adult being assessed should understand the information relevant to the decision being made and be able to retain the relevant information long enough for the decision to be made. The Adult does not need to have a complex understanding of the facts but a basic understanding of its key features.

The Adult must also be able to broadly identify the advantages and disadvantages of the options in relation to the decision, and understand the consequences of the options. The Adult should then be able to weigh the different consequences of the various options and come to a decision. Note that a “bad decision” does not necessarily equate to impaired capacity.

Freely and voluntarily making decisions about the matter

It must be clear that the adult is making the decision without pressure or coercion. This may include domineering or overbearing behaviour from family members, friends or carers.

Communicating the decision in some way

There are different ways that an adult can communicate their decision and every support must be provided to facilitate the communication, especially for individuals with physical, intellectual or cognitive impairments. In deciding whether an individual is capable of communicating their decision in some form, the tribunal must investigate the use of all reasonable methods of communication, including for example symbol boards or signing (s146(3) GAA Act).

Capacity assessment

It may be necessary to obtain medical reports from the Adult’s general practitioner or treating specialist. Other health and allied health professionals who may assist in this process can include geriatricians, rehabilitation specialists, neurologists, psychiatrists, neuropsychologists and occupational therapists.

It is important to note however, that the ultimate test of capacity is not scientific, but whether the Adult satisfies the above criteria for capacity in Schedule 4 GAA Act.

An example of how the tribunal weighs evidence as to capacity for financial decision making, including from conflicting medical witnesses, the Adult and lay witnesses, may be found in the decision WJR v Public Trustee of Queensland [2010] QCATA 39.

The Queensland Capacity Assessment Guidelines 2020 provides further general information about capacity, assessing capacity and the legal test of capacity in Queensland.  The guidelines also set out five principles which should be applied when making an assessment of an adult’s capacity. These are:

1. Identify the decision to be made.
2. Identify a need to assess capacity.
3. Apply the right legal test of capacity.
4. Prepare for the assessment.
5. Conduct the assessment.
6. Document your conclusion and reasons.

Authority for the tribunal to make a declaration about capacity

The Tribunal may make a declaration about the capacity of an Adult, a guardian, an administrator or an attorney (such as an attorney under a power of attorney, attorney under an advance health directive or a statutory health attorney) for a matter (s146(1) GAA Act).

When will the Tribunal make a declaration about capacity?

A tribunal may make a declaration about capacity:

• on its own initiative, or
• on the application of the individual (that is, the person whose capacity is at issue), or
• on the application of another interested person (s146(2) GAA Act).

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

If necessary, the Tribunal may decide whether a person is an interested person for another person: s126(1) GAA Act.

Effect of declaration about capacity

If an Adult is declared as having capacity for a matter, then the Tribunal will not be able to appoint a guardian or administrator for the Adult (s12, GAA Act) and must revoke any existing appointment (s31(2) GAA Act).

If a person without capacity enters into a contract, then they may be able to argue that the contract is void. They must prove that at the time of making the contract they were incapable of understanding it and the other party was aware or should have been aware of this. This is a principle of common law, subject to any legislative provision to the contrary.

In Queensland, this principle has been legislated in relation to land agreements under s83 of the Public Trustee Act 1978 (Qld). An Adult without capacity cannot deal with land and any such agreement is voidable. However, the agreement will stand if the other party can prove that they acted in good faith for adequate consideration and without knowledge of the Adult’s incapacity.

If the Tribunal makes a declaration about the capacity of an Adult to enter into a contract, then that declaration may be used as evidence of the person’s capacity in any subsequent proceedings in which the validity of the contract is in dispute (s147 GAA Act).

Even if a person cannot argue legal incapacity, for example, because their capacity fluctuates or because they have been declared without capacity for some matters only, they may still be able to have the contract set aside if there has been unconscionable conduct or undue influence by the other party.

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.

GAA – Functions and powers of the Tribunal

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

This fact sheet summarises the functions and powers of the Queensland Civil and Administrative Tribunal (QCAT) in exercising jurisdiction under the Guardianship and Administration Act 2000 (Qld) (GAA Act).

Jurisdiction of the tribunal

QCAT has exclusive jurisdiction for the appointment of guardians and administrators for adults with impaired capacity. This is subject to section 245 of the GAA Act where the District or Supreme Court appoints an administrator pursuant to a settlement involving a person with impaired capacity: s82(1) GAA Act.

In addition, QCAT has concurrent jurisdiction with the Supreme Court for enduring documents and attorneys under enduring documents: s82(2) GAA 2000.

The powers of QCAT are generally limited to Adults with impaired capacity, although there are some provisions in relation to people under the age of 18, namely, the advance appointment of guardians and administrators (s13 and 13A GAA Act) and sterilisation of a child with an impairment (defined as “cognitive, intellectual, neurological or psychiatric impairment”) (Chapter 5A GAA Act).

Functions of the tribunal

QCAT has the functions given to it by the Guardianship and Administration Act 2000 (Qld): s81 GAA Act. These include:

• making declarations about the capacity of an Adult (or a guardian, administrator or attorney) for a matter under s146 GAA Act;
• appointing a guardian and or administrator for an Adult under s12 GAA Act;
• reviewing the appointment of a guardian or administrator either upon application or on its own initiative under ss28 and 29 GAA Act;
• consider applications for a declaration, order, direction, recommendation or advice in relation to an Adult about something in, or related to, the GAA Act or the Powers of Attorney Act 1998: s115 GAA Act and s60 Queensland Civil and Administrative Tribunal Act 2009 (Qld), for example:

• an order or advice in relation to a guardian, administrator, attorney (that is, an attorney appointed under an enduring document or a statutory health attorney) or an enduring document;
• a declaration about the validity or scope of an Enduring Power of Attorney;

• ratifying an exercise of power, or approving a proposed exercise of power, for a matter by an informal decision maker for an adult with impaired capacity for the matter under s154 GAA Act; and
• suspending a guardianship or administration order if the Tribunal suspects that the appointed person is not competent under s155 GAA Act.

QCAT also has the following special functions:

• making an advance appointment of a guardian or administrator for a person who is at least 17 1/2 years old but not yet 18 years old under ss 13 and 13A GAA Act;
• consenting to the withholding or withdrawal of life-sustaining measures for an Adult with impaired capacity for the health matter concerned under s 66A GAA Act;
• consenting to special health care for an Adult with impaired capacity under Chapter 5, Part 3 GAA Act, such as to the donation of tissue, sterilisation, termination of pregnancy, participation in special medical research or experimental health care of an adult, or electroconvulsive therapy or psychosurgery (but see exclusion in ss68(1) and (2) GAA Act and Mental Health Review Tribunal’s jurisdiction to approve electroconvulsive therapy and psychosurgery under s138 of the Mental Health Act);
• consenting to the sterilisation of a child with an impairment under Chapter 5A GAA Act;
• consenting to the use of restrictive practices, that is, the containment and seclusion of an adult with intellectual or cognitive disability under Chapter 5B GAA Act; and
• registering an order made in another jurisdiction under s169 GAA Act.

Procedural powers

Generally speaking, the practice and procedure of QCAT is set out under the Queensland Civil and Administrative Tribunal Act 2009 (Qld). However, the GAA Act provides for some powers specific to guardianship and administration matters.

Interim orders

The Tribunal may make interim orders, without hearing and deciding the proceedings or otherwise complying with the requirements of the GAA Act, including giving notice to parties, if it is satisfied that:

• the Adult concerned has or may have impaired capacity for a matter; and
• there is an immediate risk of harm to the health, welfare or property of the Adult concerned in an application, including because of the risk of abuse, exploitation or neglect of, or self-neglect by, the Adult: s129 GAA Act.

An interim order may only operate to a maximum of 3 months. The order can be renewed in exceptional circumstances.

However, an interim order may not include consent to special health care.

Directions

Under s114 of the GAA Act, QCAT may:

• direct a person to undergo examination by a doctor or psychologist in the ordinary course of the doctor’s medical practice or the psychologist’s practice, including a direction that a party pay for the examination;
• direct the person the subject of the proceedings to be brought before the Tribunal; and/or
• revoke either of these directions.

Such a direction must be complied with unless the person has a reasonable excuse.

A Tribunal may also:

• order a person to give information or material to the Tribunal: s130 GAA Act.
• give advice or directions about the matter as it considers appropriate: s138(1)(a) GAA Act
• make recommendations it considers appropriate about action an active party should take: s138(1)(b) GAA Act.
• give leave for an active party to apply for directions about implementing the recommendation: s138(3) GAA Act.
• give directions to a former attorney for a matter for the Adult: s138AA GAA Act.

Limitation orders

Normally, QCAT proceedings are held in public and each active party is entitled to access a document or other information before the Tribunal.

However, QCAT has the power to make a limitation order if it is necessary to avoid serious harm or injustice to a person. A limitation order is defined at s100 GAA Act as including:

• an adult evidence order– an order to obtain relevant information from the Adult concerned in the matter at a hearing in the absence of anyone else: s106 GAA Act.
• a closure order– an order that the hearing be closed or certain people excluded: s107 GAA Act.
• a non-publication order– an order prohibiting the publication of information about a tribunal proceeding: s108 GAA Act.
• a confidentiality order– an order to withhold information or documents from an active party: s109 GAA Act.

Procedures regarding limitation orders, including the right to be heard in relation to a limitation order and appeals, are set out in sections 104 to 113 of the GAA 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.

GAA – End 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 outlines the circumstances in which the appointment of a guardianship or administrator ends.

Lapse of appointment

The period of appointment may be limited by the terms of the order making the appointment. An appointment will lapse in accordance with the terms of the order.

In any event, the Tribunal must review an appointment at least every 5 years in which they may decide to change or revoke the appointment: s28(1) Guardianship and Administration Act 2000 (Qld) (GAA Act) (see below).

Automatic revocation

For guardians and administrators:

An appointment ends if:

• the guardian or administrator becomes a paid carer or health provider for the Adult; or
• the guardian or administrator becomes the service provider for a residential service where the Adult is a resident; or
• if the guardian or administrator and the Adult are married when the appointment is made-the marriage is dissolved; or
• if the guardian or administrator and the Adult are in a registered relationship when the appointment is made-the registered relationship is terminated under the Relationships Act 2011, part 2, division 4; or
• the guardian or administrator dies; or
• the Adult dies: s26(1) GAA Act.

For administrators only:

An appointment will also end if the administrator becomes bankrupt or insolvent: s26(2) GAA Act.

In the case of a missing person, the appointment of an administrator ends if the coroner finds the Adult has died; or the court makes a declaration that the Adult has died; or the death is registered: s 26(2) GAA Act.

Effect of revocation

If the appointment was a joint appointment, the remaining joint administrators and/or guardians remain jointly appointed and may exercise power for the matter: s26(4) GAA Act.

If there are no other administrators or guardians then the Tribunal may appoint another guardian or administrator, unless it considers the Adult has regained decision making capacity or informal arrangements are adequate: s12(1) GAA Act.

Withdrawal from appointment

A guardian or administrator can only withdraw from an appointment with the Tribunal’s leave: s27(1) GAA Act.

If the Tribunal grants leave, then the Tribunal may appoint someone else as a replacement: s27(2)(a) GAA Act.

If the administrator gave notice to the Registrar of Titles upon their appointment pursuant to s 21 GAA Act, the registrar of the Tribunal must take reasonable steps to advise the Registrar of Titles of the withdrawal. However, the withdrawing administrator must pay the applicable fee to the titles office, unless the Tribunal orders otherwise: s27(2)(b) and s27(4) GAA Act.

Removal by order of the tribunal

If the appointment is reviewed by the Tribunal, either due to periodic review, on the Tribunal’s own initiative or upon application, the Tribunal may:

• Revoke the appointment;
• Continue the appointment or change its terms; or
• Change the appointee: s31 GAA Act.

Section 31 sets out criteria for removal of an appointee for incompetence.

See our fact sheet GAA – Review of appointment.

Notification requirements

If an appointment is automatically revoked, then the former guardian or administrator must advise the Tribunal in writing of the end of the appointment, unless revocation was a result of the death of the guardian or administrator or it is revocation of a guardian for a restrictive practice matter: s26(3) GAA Act.

If the Tribunal changes or revokes an appointment or is advised of the ending of an appointment, the registrar of the Tribunal must take reasonable steps to advise the Adult and any remaining guardians or administrators of the change, revocation or ending: s32A(2) GAA Act.

For appointments involving land, both the registrar of the Tribunal and any remaining administrators must notify the Registrar of Titles of the automatic revocation: s32A(2) GAA 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.

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.

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.

GAA – Application for appointment of a Guardian or Administrator

If you are unfamiliar with guardianship and administration law, you may want to first read the GAA – Guardianship and Administration toolkit.

The following information provides an outline of the law behind making an application to QCAT for the formal appointment of a guardian or administrator or both.

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

Who may apply?

The Tribunal may make an appointment on its own initiative, or on the application of the Adult, the Public Guardian or an “interested person”: s12(3) GAA Act.

“Interested person” means “a person who has a sufficient and continuing interest in the other person”: Sch 4 GAA Act.

If necessary, the Tribunal may decide whether a person is an interested person: s126(1) GAA Act.

If the Tribunal decides that a person is not an interested person, that person may ask for the Tribunal’s reasons in writing: s126(2) GAA Act.

Guardian or administrator?

Whether an application is made for a guardian, administrator or both depends upon the type of matter for which substituted decision making for the Adult is needed:

• For personal matters – an application should be made for a guardian; and
• For financial matters – an application should be made for an administrator.

Criteria for appointment – s12(1)

Before making an appointment, the Tribunal must be satisfied that:

• The Adult has impaired capacity for the matter; and
• There is a need for a decision in relation to the matter or the Adult is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the Adult’s health, welfare or property; and
• Without an appointment –
  • the Adult’s needs will not be adequately met; or
  • the Adult’s interests will not be adequately protected.

(a) Does the person have “impaired capacity”?

Impaired capacity has a defined meaning under the GAA Act. See our GAA – Capacity fact sheet for a detailed explanation.

(b) Is there a need for a decision to be made OR is the Adult likely to do something that involves, or is likely to involve, unreasonable risk to the Adult’s health, welfare or property?

The Tribunal will not make an appointment unless there is a clear and present need for an appointment. It will not make an appointment for a potential future need or ‘just in case’.

Is the person under 18 years of age?

The Tribunal does have jurisdiction to make an advanced appointment for an individual who has reached the age of 17 ½ years of age, but not 18 years, provided there is a reasonable likelihood that when the individual does reach the age of 18 they will have impaired capacity for the matter. The same criteria under s12 must be met. The advance appointment will not commence until the person has reached 18 years of age (s13 GAA Act).

(c) Is an appointment required to adequately meet the Adult’s needs and protect their interests?

If informal or existing arrangements are currently adequate, then there will be no need to formally appoint a guardian or administrator. For example, consideration should be given to:

• whether the Adult can be supported by other family members, social welfare and care organisations;
• whether adaptive equipment and modification to their living environment is necessary; and
• whether there is an existing enduring power of attorney and whether continuance of the attorney is appropriate.

Some or all of these may ameliorate the need for a formal appointment, particularly of a guardian.

(d) Is appointment consistent with the intent of the Act, general principles and, if applicable, the health principle?

These principles should be applied when exercising a power under the GAA Act. They are set out in full in our fact sheet GAA – Purpose of Act and general principles and general principles.

Types of appointments

Appointments on certain conditions

Appointments can be for a particular matter (for example, a guardian may be appointed to make decisions only about a person’s accommodation) or a number of matters (for example, a guardian may be appointed to make decisions about a person’s accommodation, health care and education) and may be subject to particular conditions imposed upon the appointee: s12(2) GAA Act.

Period of appointment

An appointment can be for a specified length of time, but not longer than 5 years. After 5 years the appointment must be reviewed by the Tribunal: s28 GAA Act.

If the Tribunal does not consider the impaired capacity of the Adult is permanent (for example, an adult may have had a stroke and be expected to make a full recovery), the Tribunal must state in its order when it considers it appropriate for the appointment to be reviewed: s14(5) GAA Act.

Multiple appointments:

Persons can be appointed:

• Solely – for a particular matter or all matters;
• Jointly – co-appointees must make decisions together;
• Jointly and severally – co-appointees can make decisions together or separately;*
• Severally – appointees make decisions about different matters separate from other appointees; or
• Successively – another co-appointee can make decisions when the first appointee is no longer able to do so.

Who may be appointed?

For a guardian: s14(1)(a) GAA Act

• A person who is at least 18 years old and is not a paid carer or health provider for the Adult; or
• the Public Guardian; and

who the Tribunal considers appropriate for appointment, having regard to the matters in s15(1) (“appropriateness considerations” – see below).

For an administrator: s14(1)(b) GAA Act

• A person who is at least 18 years old, not a paid carer or health provider for the Adult, not bankrupt or taking advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966(Cth) or a similar law of a foreign jurisdiction; or
• The Public Trustee or a trustee company under the Trustee Companies Act 1968(Qld); and
• who the Tribunal considers appropriate for appointment, having regard to the matters in s15(1) (“appropriateness considerations” – see below).

Appropriateness considerations: s15(1) GAA Act

In deciding whether a person is appropriate for appointment, the Tribunal must consider the following matters:

• the general principles and whether the person is likely to apply them;
• if the appointment is for a health matter-the health care principle and whether the person is likely to apply it;
• the extent to which the Adult’s and person’s interests are likely to conflict;
• whether the Adult and person are compatible including, for example, whether the person has appropriate communication skills or appropriate cultural or social knowledge or experience, to be compatible with the Adult;
• if more than one person is to be appointed-whether the persons are compatible;
• whether the person would be available and accessible to the Adult;
• the person’s appropriateness and competence to perform functions and exercise powers under an appointment order.

General principles and the health care principle

See our fact sheet GAA – Purpose of Act and general principles.

Conflict

The fact that a person is a relation of the Adult does not, of itself, mean the Adult’s and person’s interests are likely to conflict: s15(2) GAA Act.

The fact a person may be a beneficiary of the Adult’s estate on the Adult’s death does not, of itself, mean the Adult’s and person’s interests are likely to conflict: s15(3) GAA Act.

Appropriateness and competence: s15(4) GAA Act

In determining appropriateness and competence, the Tribunal must have regard to the following:

1. the nature and circumstances of any criminal history of the person, including the likelihood the commission of any offence in the criminal history may adversely affect the Adult;
2. the nature and circumstances of any refusal of, or removal from, appointment as a guardian, administrator, attorney (ie, power of attorney, or attorney under an advance health directive or similar document under the law of another jurisdiction) or other person making a decision for someone else;
3. for proposed administrators who are individuals (i.e. not companies):

• the nature and circumstances of the person having been a bankrupt or taking advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966(Cth) or similar law of foreign jurisdiction;
• the nature and circumstances of a proposed, current or previous arrangement with the person’s creditors under the Bankruptcy Act 1966(Cth) or similar law of foreign jurisdiction;
• the nature and circumstances of a proposed, current or previous external administration of a corporation, partnership or other entity of which the person is or was a director, secretary or partner or in whose management, direction or control the person is or was involved.

Duties of proposed appointees

For proposed guardians and administrators: s16 GAA Act

A person who has agreed to a proposed appointment must advise the Tribunal (before the Tribunal makes an appointment) of:

• Whether he or she:
  • is under 18 years; or
  • is a paid carer or health provider for the Adult; or
  • has any criminal history, whether in Queensland or elsewhere; or
  • has been, whether in Queensland or elsewhere, refused, or removed from, appointment as a guardian, administrator, attorney or other person making a decision for someone else; or
  • for a proposed appointment as administrator:
    • is bankrupt or taking advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966 (Cth) or a similar law of a foreign jurisdiction; or
    • has ever been bankrupt or taken advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966 (Cth) or a similar law of a foreign jurisdiction; or
    • is proposing to make, or has ever made, an arrangement with his or her creditors under the Bankruptcy Act 1966 (Cth), part 1012 or a similar law of a foreign jurisdiction; or
    • is or was a director, secretary or partner, or is or was involved in the management, direction or control of a corporation, partnership or other entity that is proposing to be, is or has been, under external administration.
  • Any likely conflict between:
    • the duty of the proposed appointee if appointed as guardian or administrator towards the Adult; and
    • either:
      • the interests of the proposed appointee or a person in a close personal or business relationship with the proposed appointee; or
      • another duty of the proposed appointee as guardian or administrator for another person.

For proposed administrators only

A person who agrees to be appointed as administrator must give a financial management plan to the Tribunal for approval: s20 GAA Act.

See “A financial management plan for proposed administrators” on the QCAT website. Guidelines for completing “A financial management plan for proprosed amdinsitrators” form can be found in the form.

For more information please review:

• Form Number 10 Application for administration/guardianship appointment or review.
• Guardianship for adult  fact sheet.
• Administration for adults fact sheet.

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.

Guardianship and Administration

Guardianship and administration law governs the situation where an individual is no longer able to make certain personal and financial decisions on their own. In this situation, a substituted decision-maker may be appointed to help the individual with impaired capacity by making these decisions on their behalf

Factsheets

• GAA – Guardianship and Administration toolkit
• GAA – Types of substituted decision making
• GAA – Purpose of Act and general principles
• GAA – Capacity
• GAA – Application for appointment of a Guardian or Administrator
• GAA – Review of appointment
• GAA – Duties of appointees and remedies in case of breach
• GAA – End of appointment
• GAA – Functions and powers of the Tribunal

External Resources

• Public Guardian – The Office of the Public Guardian is an independent body, working to protect the rights and interests of adults who have an impaired capacity to make their own decisions.
• Public Trustee of Queensland – The Public Trustee provides enduring powers of attorney, free wills, investment, executor and financial administration services to Queenslanders.
• Administration for adults– Queensland Civil and Administrative Tribunal – QCAT can appoint an administrator to assist an adult with impaired decision making capacity by making certain financial and legal decisions on their behalf.
• Guardianship for adults – Queensland Civil and Administrative Tribunal – QCAT can appoint a guardian to help an adult with impaired decision making capacity by making certain personal and health care decisions on their behalf.

Where to go for help

• LawRight is an independent, not-for-profit, community-based legal organisation that operates a civil law referral service for pro bono legal representation and direct legal services for particular disadvantaged client groups. For more information about the help available, and the process for applying for help, please see the LawRight website at lawright.org.au LawRight’s Court and Tribunal Services provides free legal advice and assistance to self-represented parties throughout the course of their proceedings in the Queensland Civil and Administrative Tribunal.
• Aged and Disability Advocacy Australia Inc – ADA Australia is a not-for-profit, independent, community based advocacy service with over 20 years experience in supporting the needs of older people and people with disability in Queensland.
• Caxton Seniors Legal and Support Services – The Seniors Legal and Support Services provide free legal and support services for seniors concerned about elder abuse, mistreatment or financial exploitation. The services are staffed by solicitors and social workers.
• Queensland Advocacy for Inclusion – QAI are an independent advocacy organisation advocating for the protection and advancement of the needs, rights and lives of people with disability in Queensland.
• You may wish to approach a community legal centre for assistance. To find your nearest community legal centre, please visit the Community Legal Centres Queensland website at communitylegalqld.org.au . There are a number of community legal centres throughout Queensland that hold regular advice sessions.

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.

Witnesses in QCAT

This factsheet provides information for people who intend, or are required to, give evidence or produce a document for proceedings before the Queensland Civil and Administrative Tribunal (QCAT). It sets out a witness’s rights and obligations under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

An enabling Act may have provisions that supersede the rules stated below. An enabling Act is another Act which gives the Tribunal jurisdiction to hear a particular matter. For example, if the matter relates to guardianship and administration, then the enabling act is the Guardianship and Administration Act 2000 (Qld) (GAA Act).

Notice to attend a hearing

The Tribunal may, of its own initiative or upon application of a party, issue a written notice requiring a person to attend at a stated hearing of a proceeding to give evidence (s 97(1)(a) QCAT Act).

Notice or order to produce documents or things

The Tribunal may, of its own initiative or upon application of a party, issue a written notice requiring a person to produce a stated document or other thing to the Tribunal (s 97(1)(b) QCAT Act).

The Tribunal may also make an order requiring a person to produce a document or thing to the Tribunal or to a party to the proceeding (s 63(1) QCAT Act).

The document or thing stated in the notice or order may be inspected, photographed, photocopied or otherwise recorded by a party to the proceedings unless the Tribunal orders otherwise (Rule 80(3) QCAT Rules).

A person the subject of the order or notice is not required to attend the hearing unless the Tribunal orders otherwise or the person has been given notice under s 97(1)(a) to attend the hearing (Rule 80(2) QCAT Rules).

Witness entitlements

A person who attends a hearing or produces a document in accordance with the written notice issued by the Tribunal under s 97 is entitled to be paid the fees and allowances prescribed by regulation (s 97(4) QCAT Act). See regulations 11 to 16 of the Queensland Civil and Administration Tribunal Regulation 2009 (Qld) for more information.

These fees and allowances are to be paid:

• if the written notice was issued upon application by a party – by the party who made the application; or
• if the written notice was made by the Tribunal on its own initiative – by all of the parties in the proportions decided by the Tribunal (s 97(45) QCAT Act).

Giving evidence

At a hearing, evidence of a witness may be given orally or in writing, and, if the Tribunal directs, on oath or by affidavit (s 95(4) and 98(1)(b) QCAT Act). The Tribunal may also permit a witness to give evidence by tendering a written statement, verified, if the Tribunal directs, by oath (s 57(3) QCAT Act).

However, a child cannot be compelled to take an oath (s 945(6) QCAT Act).

Cross examination

The object of cross-examination is to qualify, weaken or destroy the opponent’s case and, potentially, establish your own case.

Each party must be given a reasonable opportunity to examine, cross-examine and re-examine each witness (s 95(1) QCAT Act).

However, the Tribunal may refuse or limit cross-examination if the Tribunal considers there is already sufficient evidence before the Tribunal about the matter and the evidence has been sufficiently tested by cross-examination (s 95(2)(b) QCAT Act).

In expedited hearings, cross-examination and re-examination of witnesses is at the discretion of the Tribunal, subject to the QCAT Rules (ss 95(2)(c) and 94 QCAT Act).

The Tribunal also has the power to place time limits on the giving of evidence and on the examination, cross-examination and re-examination of witnesses (s 95 (3) QCAT Act).

Tribunal powers in relation to witnesses

The Tribunal can call any person to give evidence on the Tribunal’s own initiative (s 98(1) QCAT Act).

The Tribunal may also:

• examine a witness on oath, or require a witness to give evidence by affidavit.
• examine or cross-examine a witness to the extent the Tribunal considers it appropriate to obtain information relevant to performing its functions in the proceedings,
• compel a witness to answer questions the Tribunal considers relevant to the proceeding (s 98(1) QCAT Act).

However, the Tribunal may not compel a witness to answer a question if the witness has a reasonable excuse for refusing to answer the question, for example, where the answer might incriminate the person (s 98(2) and (3) QCAT Act).

Proceedings where witnesses are not needed

The Tribunal may decide to conduct part or all of the proceeding by solely relying on the documents the parties have lodged with the Tribunal. In those circumstances, witnesses need not appear at the hearing. The parties and their representatives are also excused (s 32 QCAT Act).

Treatment of vulnerable witnesses

Tribunal obligations to conduct proceedings sensitively

The Tribunal has an obligation to take reasonable steps to understand the actions, views and assertions of a witness in the proceeding, having regard to the witness’s age, any disability, and cultural, religious and socioeconomic background (s 29(1)(b) QCAT Act).

The Tribunal must also take all reasonable steps to ensure that each party to a proceeding understands the nature of assertions made in the proceeding and the legal implications of the assertions (s 29(1)(a) QCAT Act). This would include ensuring that each party understands the material evidence being presented by each witness.

The Tribunal is also required to ensure that the conduct of proceedings is responsive to:

• cultural diversity and the needs of a witness who is from another culture, or linguistic background or is an Aboriginal person or Torres Strait Islander;
• the needs of a witness who is a child or a person with impaired capacity or a physical disability (s 29(1)(c) QCAT Act).

See for example, Smith v Condie t/a Listonia Landscaping [2010] QCAT 256.

Interpreters and support people

Unless the Tribunal directs otherwise, a witness to a proceeding may be helped by an interpreter or other person to help the witness to understand the proceeding (s 44 QCAT Act). For example, the witness may be helped by someone with appropriate cultural or social knowledge and experience.

At a private hearing, the Tribunal is required to ask each witness if that witness needs a support person for giving evidence. If the witness confirms that they do need a support person, the Tribunal must allow the support person to attend the hearing with the witness. However, the support person must not represent the party and must not be a party to the proceeding (s 91 QCAT Act).

If the support person is also to be a witness at the hearing, they may be directed to only attend the hearing at certain times (s 91(4) QCAT Act).

Special witnesses

There exist a number of different types of orders that the Tribunal may make where a special witness is giving evidence at a hearing: see s 99 QCAT Act. Section 99 does not apply to guardianship and administration matters: see s 101 GAA Act.

A special witness is a witness who is a child or another person who the Tribunal considers likely, if the person is required to give evidence, to:

• be disadvantaged as a witness because of the person’s mental, intellectual or physical impairment or a relevant matter, such as the person’s age, education, level of understanding, cultural background, relationship with a party to the proceeding or the subject matter of the evidence; or
• suffer severe emotional trauma; or
• be so intimidated as to be disadvantaged as a witness (s 99(4) QCAT Act).

The various orders that the Tribunal may make in relation to a special witness include:

• that only particular people may be present when the special witness gives evidence;
• that only particular people may ask questions of the special witness;
• that the questioning of the special witness must be restricted to a stated time limit;
• that a particular person must be obscured from the view of the special witness while the special witness is giving evidence;
• that a particular person must be excluded from the place where the hearing is held while the special witness is giving evidence;
• that the special witness must give evidence in a place other than where the hearing is held and in the presence of only stated people or with stated people being excluded from the room;
• that a person, including, for example, a support person (see below), must be present while the special witness is giving evidence to give emotional support to the special witness;
• that an audiovisual record of the evidence given by the special witness be made and that the record be viewed and heard at the hearing instead of the special witness giving direct testimony at the hearing (s 99(2) QCAT Act).

A person can apply for one of these orders or they can be made on the Tribunal’s own initiative (s 99(3) QCAT Act).

Non-publication orders

Generally speaking, the QCAT file and hearings are a matter of public record.

A non-publication order prohibits the publication of the contents of a document, evidence given at the Tribunal or information which identifies a person who has appeared or is affected by the proceeding. It may be made on the application of a party or upon the Tribunal’s own initiative (s 66(1) QCAT Act).

The Tribunal may only grant a non-publication order if it considers the order is necessary:

• to avoid interference with the proper administration of justice;
• to avoid endangering the physical or mental health or safety of a person;
• to avoid offending public decency or morality; or
• to avoid the publication of confidential information or other information which would be contrary to the public interest; or
• for any other reason in the interests of justice (s 66(2) QCAT Act).

See for example, Medical Board of Queensland v Mallon [2010] QCAT 311, where the Tribunal granted a non-publication order to protect names of patients, but not the medical practitioner who was the subject of disciplinary proceedings.

Offences and enforcement

Failure to appear

It is an offence for a witness not to attend a Tribunal hearing if they have been issued a notice by the Tribunal under s 97 of the QCAT Act without reasonable excuse (s 214(1) QCAT Act).

If a witness does not attend, then the Tribunal has the power to issue a warrant directing a police officer to bring the person at the time and to the place stated in the warrant to give evidence. The proceedings may be adjourned until then (s 215 QCAT Act). The warrant should be carried out by the police officer in accordance with the requirements under the Police Powers and Responsibilities Act 2000 (Qld), in particular sections 21 (General power to enter to arrest or detain someone or enforce warrant) and 615 (Power to use force against individuals).

A person who fails to appear at a hearing may be the subject of contempt proceedings.

Failure to follow directions

A person appearing as a witness at a hearing of a proceeding must not:

• fail to take an oath when required by the Tribunal; or
• fail, without reasonable excuse, to answer a question the person is required to answer by the Tribunal; or
• fail, without reasonable excuse, to produce a document or other thing the person is required to produce by a notice under section 97 (s 214(2) QCAT Act).

It is a reasonable excuse not to answer a question or produce a document where that information would tend to incriminate the person (s 214(3) QCAT Act). This right is further preserved in section 237(9) of the QCAT Act.

Failure to follow directions is an offence and may result in contempt proceedings.

False and misleading information

Any person, including witnesses, must not say anything or give any document containing information that the person knows to be false or misleading to a Tribunal official. A Tribunal official includes registry staff but does not include a conciliator or mediator (s 216 QCAT Act).

However, a person will not have committed an offence if the person when giving a document tells the official how it is false and misleading and, if the person has or can reasonably obtain the correct information, gives the correct information.

Giving false or misleading information may result in contempt proceedings.

Influencing a witness

It is an offence to improperly influence, or attempt to improperly influence, a witness (s 217 QCAT Act).

Contravention of this provision may result in contempt proceedings.

Contempt of the Tribunal

In addition to the above, a person is in contempt of the Tribunal if they:

• insult a tribunal member, adjudicator, registrar or registry staff member;
• obstruct or assault a person attending a proceeding;
• obstruct or hinder a person from complying with a decision of the tribunal;
• unreasonably interrupt a proceeding or otherwise misbehaves;
• create or continue a disturbance in or near a place where the Tribunal is sitting;
• contravene an undertaking they have given to the Tribunal (s 218(1) QCAT Act).

Children are not in contempt if their actions relate to proceedings which are reviewing a decision about the child (s 218(2) QCAT Act).

The Tribunal has the ability to invoke all the protection, powers, jurisdiction and authority the Supreme Court has in relation to contempt (s 219 QCAT Act). This includes fines, exclusion from the hearing and imprisonment.

This resource is current as of 21 February 2024

Hearings in the Queensland Civil and Administrative Tribunal

This factsheet sets out some rules and procedures which generally apply to Queensland Civil and Administrative Tribunal (QCAT) hearings. It may be useful for people who are preparing to go to a QCAT hearing and would like some information on what to expect.

The following information refers to provisions of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). An enabling Act may set out requirements which override these provisions. An enabling Act is another Act which gives the Tribunal jurisdiction to hear a particular matter. For example, if the matter relates to guardianship and administration, then the enabling Act is the Guardianship and Administration Act 2000 (Qld) (GAA Act).

Who will be at my hearing?

The Tribunal

The Tribunal may comprise of 1 to 3 members depending on the nature of the case. This may include a judicial member, that is, a member who is a Supreme Court or District Court judge. The composition of the Tribunal is carefully selected by the President, taking into account the nature, importance, complexity and special knowledge required for the matter (ss 165 and 167 QCAT Act).

Interpreters and support persons

Interpreters are allowed for parties or witnesses who have trouble understanding English.

A party or a witness may also be helped by another person to help them understand the proceedings. For example, the other person may be someone with appropriate cultural or social knowledge and experience (s 44 QCAT Act).

If the hearing is to be held in private, the Tribunal will allow each party and witnesses a support person to attend the hearing if they require one (s 91 QCAT Act).

Lawyers

As a general rule, parties before QCAT are self-represented unless the interest of justice require otherwise (s 43(1), QCAT Act).

However, the following categories of people are allowed representation as of right:

1. Children;
2. Persons with impaired capacity; and
3. Parties in a disciplinary proceeding.

A person may also be represented if another Act or the QCAT rules state the person may be represented. The Tribunal can also give its permission for a party to be represented (s 43 QCAT Act).

A representative must be a lawyer, unless the Tribunal otherwise agrees (s 43(4) QCAT Act).

See our factsheet Representation in QCAT for more information.

The public

Under s 90 of the QCAT Act, hearings must be held in public. This provision does not apply to guardianship and administration matters, although those matters as a general rule are also to be held in public: see ss 101 and 105 of the GAA Act.

However, a hearing (or part of a hearing) may be held in private if the Tribunal considers it necessary in the following circumstances:

• To avoid interfering with the proper administration of justice;
• To avoid endangering the physical or mental health or safety of a person;
• To avoid offending public decency or morality;
• To avoid the publication of confidential information or information whose publication would be contrary to public interest; or
• For any another reason in the interests of justice (s 90(2) QCAT Act).

What if I don’t go to my hearing?

In the event that a person, who has been given adequate notice of the hearing, fails to turn up or cannot be found after reasonable enquiries have been made, the Tribunal may hear and decide the matter in that person’s absence, even if that person is a party to the matter (s 93 QCAT Act).

What rules apply to my hearing?

Procedure generally

Subject to the QCAT Act, enabling Acts and rules, the procedure for QCAT proceedings are at the discretion of the Tribunal (s 28(1) QCAT Act).

The objects of the QCAT Act include:

• To have the Tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick (s 3(b) QCAT Act).

The functions of the Tribunal include:

• To encourage the early and economical resolution of disputes including, if appropriate, through alternative dispute resolution processes;
• To ensure proceedings are conducted in an informal way that minimises costs to parties and is as quick as is consistent with achieving justice; and
• To ensure the Tribunal is accessible and responsive to the diverse needs of people who use the Tribunal (s 4 QCAT Act).

In all proceedings, the Tribunal must:

• Act fairly and according to the substantial merits of the case;
• Observe the rules of natural justice;
• Act with as little formality and technicality and with as much speed as the requirements of the QCAT Act, an enabling act or the rules and a proper consideration of the matters before the Tribunal permit;
• Ensure so far as practicable that all relevant material is disclosed to the Tribunal to enable it to decide the proceedings with all the relevant facts;
• Take reasonable steps to ensure each party understands the practices and procedures of the Tribunal, the nature of allegations made in the proceedings and the decision of the Tribunal; and
• Ensure proceedings are responsive to cultural diversity, Aboriginal tradition and Island custom and the needs of a party who is a child or a person with impaired capacity or a physical disability (ss 28 and 29 QCAT Act).

See for example, Thackham v Dunne & Sweeney [2010] QCATA 109.

Giving evidence

The Tribunal is not bound by the rules of evidence and may inform itself in any way it considers appropriate (s 28(3) QCAT Act).

The Tribunal must allow all parties a reasonable opportunity to:

• Call or give evidence;
• Examine, cross-examine and re-examine witnesses; and
• Make submissions to the Tribunal.

However, the Tribunal has a discretion to limit these rights if the Tribunal considers there is already sufficient evidence about the matter before the Tribunal.

Evidence can be given orally or in writing and may be required to be given under oath or by affidavit (s 95 QCAT Act).

You may need to compel witnesses to give evidence to support your case. For more information about witnesses, please see Witnesses in QCAT.

Prohibited conduct

It is important that your conduct in the Tribunal is respectful and does not unnecessarily disadvantage another party to the proceedings. See Unmeritorious proceedings and conduct causing disadvantage in QCAT for information about the risks in conducting your matter in a way that is unfair.

This resource is current as of 21 February 2024

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.

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.

The Queensland Civil and Administrative Tribunal (QCAT) only has jurisdiction to hear a matter if it is authorised to do so by the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) or another piece of legislation. These other pieces of legislation are often referred to as “enabling Acts”.

When legislation gives authority to QCAT to hear a matter it will specify the “jurisdiction” QCAT must exercise in relation to the matter. QCAT has 3 types of jurisdiction:

1. Original jurisdiction;
2. Review jurisdiction; and
3. Appeal jurisdiction.

Each jurisdiction has its own purpose, rules and procedures and powers.

This fact sheet summarises the three types of jurisdictions conferred on QCAT.

Original Jurisdiction

What does “original jurisdiction” mean?

Original jurisdiction means that QCAT is making a decision on the matter for the first time. In other words, where an application is made to the Tribunal under its original jurisdiction, no other body or person will have previously decided this matter.

When does the Tribunal exercise its original jurisdiction?

QCAT has original jurisdiction for:

1. Minor civil disputes; and
2. Matters conferred upon it by an enabling Act to decide a matter in the first instance. (s 10 QCAT Act).

Minor civil disputes are defined in s 12 of the QCAT Act. The Tribunal only has power to make orders to the value of $25,000 (or other amount as prescribed by regulation). (s 13(3) QCAT Act).

Examples of original jurisdiction conferred on QCAT by an enabling Act are:

• The Guardianship and Administration Act 2000 (Qld) which gives QCAT a number of functions including the consideration of applications for appointment of guardians and administrators (s 81 Guardianship and Administration Act 2000 (Qld)).
• The Anti-Discrimination Act 1991 (Qld) which entitles a complainant to require the Human Rights Commissioner to refer a complaint to QCAT if conciliation has failed (s 166 Anti-Discrimination Act 1991 (Qld)).

QCAT also exercises original jurisdiction where it is empowered by an enabling Act to review its own decisions. For example:

• The Guardianship and Administration Act 2000 (Qld) enables parties to apply for review of the appointment of a guardian, the appointment having been made by QCAT in the first instance;
• The Health Practitioner Regulation National Law Queensland empowers QCAT to review decisions where QCAT has decided that grounds for disciplinary action exist.

What are the powers of the Tribunal in exercising original jurisdiction?

The enabling Act conferring original jurisdiction will generally state the Tribunal’s functions in the jurisdiction, which may add to, vary or exclude the functions stated in the QCAT Act (ss 6(3) and 16 QCAT Act).

Who are the parties to a proceeding in the tribunal’s original jurisdiction?

• the applicant; or
• the person the subject of the proceedings, if any; or
• an intervener; or
• a person joined as a party to the proceeding; or
• any other person specified as a party under an enabling Act (s 39 QCAT Act).

Review Jurisdiction

What does “review jurisdiction” mean?

If QCAT has been conferred (or given) review jurisdiction, it means a decision has already been made, generally by a government or statutory agency and QCAT is required to step into the shoes of the original decision-maker and reconsider the decision. This sort of decision making may have previously been referred to as an “appeal”.

The purpose of the review is to ensure that the correct decision was made based on the facts of a case. This is to enhance the quality and consistency of decisions by decision makers and to enhance openness and accountability of public administration (s 3(d) and (e) QCAT Act).

When does the Tribunal exercise its review jurisdiction?

QCAT has review jurisdiction when it is conferred with power to review decisions originally made by another entity (s 17 QCAT Act).

The decision being reviewed is known as the reviewable decision and the entity which originally made the decision is known as the decision maker.

What are the powers of the Tribunal in exercising review jurisdiction?

In exercising review jurisdiction, the Tribunal has the power to:

• confirm or amend the original decision
• substitute its own decision; or
• set aside the decision and return the matter for reconsideration by the original decision-maker with any directions it considers appropriate (s 24 QCAT Act).

The Tribunal may also:

• invite the decision maker to reconsider the decision at any stage of the proceeding (s 23 QCAT Act);
• exercise all the functions of the original decision-maker in relation to the reviewable decision (s 19(c) QCAT Act); and
• exercise the functions conferred upon it by the QCAT Act or the enabling Act (s 19(b) QCAT Act).

How does the Tribunal approach its task of reviewing a decision?

The purpose of the review is to produce the correct or preferable decision. This is done by way of a fresh hearing on the case’s merits (s 20 QCAT Act). A decision must be made in accordance with the QCAT Act and the enabling Act (s 19(1) QCAT Act).

To this end, the original decision-maker is required to assist the Tribunal to the best of their ability, including, for example, providing the Tribunal with a copy of the reasons for decision and any documents in the decision maker’s possession or control that may be relevant to the tribunal’s review of the decision, within 28 days of being given a copy of the application (s 21 QCAT Act).

A detailed consideration of the Tribunal’s approach to reviewing a decision is provided in Queensland Racing Ltd v McMahon [2010] QCATA 73.

How does a review affect the original decision?

The start of proceedings to review a decision does not affect the original decision unless otherwise stated in an enabling Act or unless QCAT specifically makes an order to stay the original decision.

An order to stay the original decision stops it from being implemented. A stay may be ordered upon application by a party or on the Tribunal’s own initiative.

In making a stay order, the Tribunal must have regard to:

1. The interests of any person who will be affected by the making of the order or the order not being made (but who may not be given an opportunity to make submissions if that is not practicable).
2. Any submission made to the Tribunal by the original decision-maker; and
3. The public interest.

The Tribunal may also require an undertaking as to costs or damages, or may impose certain conditions, or may provide for the lifting of the order if stated circumstances occur (s 22 QCAT Act).

Inviting the original decision maker to reconsider the decision

The Tribunal may invite the original decision-maker to reconsider their decision before the review proceedings have been completed. The decision-maker then has 28 days to reconsider their decision and either confirm, amend or substitute their original decision.

The review proceedings will then continue, based on the affirmed, amended or substituted decision, unless the applicant withdraws their application (s 23 QCAT Act).

Who are the parties to a proceeding in the Tribunal’s original jurisdiction?

• The applicant;
• The decision-maker for the reviewable decision (named using their official description, rather than their personal name);
• An intervener;
• A person joined as a party to the proceedings; and
• Any other person specified as a party under an enabling Act (s 40 QCAT Act).

Appeal Jurisdiction

What does “appeal jurisdiction” mean?

The appeal jurisdiction refers to a situation where another entity or QCAT itself has made a decision and there are provisions that allow an appeal to be lodged with the Tribunal.

If the Tribunal is to sit in its appeal jurisdiction, it will usually be constituted by 1, 2 or 3 judicial members (s 166 QCAT Act). This is often referred to as the Appeal Tribunal.

When does the Tribunal exercise its appeal jurisdiction?

The Tribunal has jurisdiction to hear:

• appeals against its own decisions under s 142 of the QCAT Act; and
• appeals against the decisions of other entities under an enabling Act (s 25 QCAT Act).

Generally speaking, a decision of QCAT may be appealed to the Appeal Tribunal under s 142 where:

• A judicial member did not constitute the Tribunal in the proceeding;
• The decision does not relate to a cost-amount decision (an amount ordered to be paid under a costs order); and
• The decision does not relate to the decision of a registrar to accept or reject an application or referral made to the Tribunal.

In certain circumstances it is necessary to get the Appeal Tribunal’s permission to appeal, which is called “getting leave”. The Appeal Tribunal’s leave is required to appeal:

• A minor civil dispute decision;
• An interim or preliminary decision;
• A costs order; and
• An appeal involving a question of fact.

Please see the Appealing a QCAT decision to the QCAT Appeal Tribunal or Queensland Court of Appeal factsheet for more information.

What are the powers of the Tribunal in exercising appeal jurisdiction?

Please see the heading Powers and procedure – Appeals to the Appeal Tribunal under the Appealing a QCAT decision factsheet under for more information.

Who are the parties to a proceeding in the tribunal’s appeal jurisdiction?

The parties to an appeal will be the same as the parties to the original decision.

This resource is current as of 21 February 2024

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.

Remedies for breaches by enduring attorneys

Meaning of terms

A dictionary in schedule 3 defines particular words used in the POA Act.

In simple terms:

• An Enduring Power of Attorney (EPA) is a formal document used by an adult (the principal) to authorise one or more persons (the attorneys) to make personal and/or financial decisions on the principal’s behalf if the principal lacks capacity to make those decisions.

• An attorney under an EPA means a person authorised to make decisions on behalf of another person.

• A principal under an EPA means a person who appoints an attorney to make decisions on that person’s behalf.

• Power for a matter means power to make all decisions about that matter.

• A person’s capacity for a matter means the person is capable of:

• understanding the nature and effect of decisions about the matter; and
• freely and voluntarily making decisions about the matter; and
• communicating the decisions in some way.

• A person’s impaired capacity for a matter means the person does not have capacity to make decisions about the matter.

Personal liability of enduring attorneys

When an enduring attorney exercises a power authorised by a principal, the attorney must exercise that power in a way that complies with relevant general principles and discharges the attorney’s duties (section 6C POA Act), (see EPA 2 – Power of enduring attorneys and EPA 3 – duties of enduring attorneys).

Generally, enduring attorneys are not personally liable for losses and liabilities incurred by a principal.

However, an attorney can be held personally liable if a loss incurred by a principal was caused by the attorney’s failure to discharge his or her duties when exercising a power conferred by the principal.

Statutory remedies under the POA Act

Right to compensation

If a principal incurs a loss because of the attorney’s breach of the POA Act, the principal or the principal’s estate (if the principal has died) has a right to seek compensation from the attorney for that loss (sections 106 and 107 POA Act).

• An application for a compensation order against an attorney under sections 106 or 107 POA Act is made to the Supreme Court. QCAT does not have jurisdiction to decide such application (Public Trustee of Queensland v BN and Ors (2011) QCAT 666).

• If the principal or attorney has died, the application for compensation must be made within 6 months after the death. That time limitation can be extended by the court in exceptional circumstances (section 106 POA Act).

• The court may relieve an attorney from all or part of the attorney’s personal liability for a loss if the court finds that:

• the attorney acted honestly; and
• the attorney acted reasonably; and
• it would be fair to excuse the attorney’s breach (section 105 POA Act).

• An attorney who is acting honestly would generally be found to be acting in good faith and in the principal’s interests. However, the attorney’s knowledge of a wrongdoing is not a necessary pre-requisite for a finding that an attorney acted dishonestly (Ede v Ede (2006) QSC 378).

Right to apply to QCAT or the Supreme Court to protect a principal’s interests

A principal, a member of the principal’s family, an attorney, the Public Guardian, the Public Trustee, or another person who has a sufficient and genuine concern for the rights and interests of the principal, can apply to QCAT or the Supreme Court for orders about something related to the POA Act (section 110 POA Act).

Direction, advice or recommendation

A principal or an interested person can apply for a direction, advice or recommendation about a matter related to the POA Act, including (section 118 POA Act):

• how the terms of an EPA should be interpreted;
• how an attorney’s power for a matter should be exercised; or
• to authorise an attorney to undertake a transaction that the attorney may not be authorised to undertake.

Declaration

A principal or an interested person can apply for a declaration about matters relating to an EPA, including about:

• a person’s capacity for a matter (section 111 POA Act);
• the validity or invalidity of an EPA (sections 113 POA Act); and
• whether an attorney’s power under an EPA has begun (section 115 POA Act).

Order

A principal or an interested person can apply for an order about something related to the POA Act, including:

• an order to remove a power from an attorney and give that power to another attorney or a new attorney;
• an order to change the terms of an EPA; or
• an order to revoke all or part of an EPA (section 116 POA Act).

This may happen, for example, if a court or the tribunal finds that the circumstances of a principal or other circumstances have changed and one or more terms of the EPA are no longer appropriate to protect the principal’s interests (section 117 POA Act).

Right to records and audit

If a principal or an interested party has genuine concerns about how an attorney for a financial matter is managing a principal’s finances, an application can be made to QCAT or the Supreme Court for:

• an order that the attorney provides a summary of receipts and expenditures for a specified period;
• an order that the attorney provides detailed accounts of dealings and transactions undertaken by the principal for a specified period;
• an order that the accounts provided be audited; or
• an order that the attorney present financial management plan for approval (section 122 POA Act).

Complaints to the Public Guardian

The Office of the Public Guardian (OPG) is an independent statutory body created under the Public Guardian Act 2014 (Qld) (PG Act) to protect the rights and interests of vulnerable Queenslanders, including adults with impaired capacity.

Investigative powers

The OPG can investigate a complaint or allegations that an adult with impaired capacity is being or has been neglected, exploited or abused, or that decision-making arrangements are inappropriate or inadequate (section 19 PG Act).

• Those investigative powers include:

• the power to require an attorney for a financial matter or an administrator to produce records and accounts (section 21 PG Act);
• the power to gain access to all information necessary to investigate a complaint (section 22 PG Act); and
• the power to summon a person to answer questions or produce documents or things (section 25 PG Act).

• Once an investigation is completed, the OPG issues a written report that can be used as evidence in legal proceedings or police investigations.

• The OPG may require that the costs of an investigation be paid by:

• the attorney or administrator if he or she has not acted as required by law; or
• the person making the complaint if the complaint is frivolous, vexatious or without good cause (section 29 PG Act).

Protective powers

The OPG also has power to protect an adult with impaired capacity, including by:

• suspending the operation of an EPA for up to 3 months if an attorney is not competent (section 34 PG Act);
• applying for interim orders to protect a principal’s rights and interests;
• applying for an entry and removal warrant if a principal is at immediate risk of harm (section 36 PG Act); and
• bringing a claim for damages or to recover possession of a property or payment of money wrongfully dealt with (section 33 PG Act).

Equitable remedies

In addition to the statutory remedies set out in the POA Act, in some cases an equitable remedy may be available to protect the interests of a principal. A claim for an equitable remedy may be made together with a claim for a statutory remedy.

Equity is a complex area of law. The courts consider many factors when determining if an equitable remedy should be granted to a person, including a lengthy delay in seeking a remedy and the conduct and circumstances of the parties involved when they entered into a transaction.

Below are examples of common equitable claims made in the context of EPAs. This is not an exhaustive list of equitable claims that may be available to protect a person’s interests.

Breach of fiduciary duty

• The relationship between a principal and an attorney gives rise to fiduciary duties owed by the attorney to the principal. These duties are inherent in the relationship of trust between an attorney and principal, which is also called a fiduciary relationship.

• If an attorney breaches a fiduciary duty, for example, by making a profit at the principal’s expense, an application can be made for an order holding the attorney accountable for the profit made in breach of a fiduciary duty.

For an example of equitable compensation awarded for a breach of fiduciary duty by an enduring attorney, see Smith v. Glegg (2004) QSC 443 (9 December 2004).

Unconscionable dealings

• A court may set aside a transaction if one party to that transaction is at a special disadvantage when compared to the other party, and the stronger party knew or ought to have known about it and takes an unfair advantage of that vulnerability to gain a benefit for himself or herself (Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447).

• The special disadvantage of a principal in comparison to an attorney may arise, for example, because of a principal’s age, impaired capacity, illness or lack of assistance or explanation if assistance or explanation would be necessary for the principal to make an informed decision about his or her interests.

• When considering a claim of unconscionable dealings, a court looks to the conduct of the stronger party trying to enforce a dealing or gain a benefit when dealing with a person with a special vulnerability.

Undue influence

A court may set aside a transaction procured by undue influence, which can arise as a matter of fact or where there is a presumption of undue influence between the parties that is not rebutted by evidence. For example, there is a presumption that in a conflict transaction between a principal and attorney (or between a principal and a relative, business associate, or close friend of the attorney), the attorney induced the principal to enter into that transaction by undue influence (section 87 POA Act). If that presumption is not rebutted by the principal, a court may set aside that conflict transaction.

• When considering a claim of undue influence, a court looks to the quality of the consent for a transaction given by a vulnerable party For an example of an order setting aside a transfer of a house as a result of undue influence and unconscionable dealing by an enduring attorney, see Gillespie v Gillespie & Ors (2012) QDC 212).

Implied trusts

• A trust is a legal relationship under which a person holds a legal interest in a property for the benefit of one or more beneficiaries and subject to certain duties.

Under exceptional circumstances, a court may make a declaration that a person’s legal interest in a property is held on trust for the benefit of another person. That could happen, for example, if it would be unconscionable to allow an enduring attorney to take an unfair advantage of a vulnerable principal who loaned the attorney money to buy a house on a promise that the principal could live in the home with the attorney.

For examples of cases where the court declared that the legal owner of a property held an interest on trust for another person, see Swettenham v Wild (2005) QCA 264 and Field v Loh & Anor (2007) QSC 350.

Unmeritorious complaints about enduring attorneys

• Before commencing legal proceedings, it is recommended that a person considers if alternative dispute resolution (ADR) would be an appropriate way to try to resolve a conflict or legal problem. In ADR, an impartial person assists those in disagreement to solve the issues between them (see Alternative Dispute Resolution).

• It is strongly recommended that a person obtains legal advice before making an application to QCAT or the Supreme Court.

• An application that is found to be frivolous, trivial, vexatious, misconceived or lacking in substance can be dismissed and an order for costs can be made against the applicant.

• An order can also be made prohibiting a person to make a new application about a matter without first obtaining authorisation from the court or tribunal (s 123 POA Act).

(see Unmeritorious proceedings and conduct causing disadvantage in QCAT; Costs orders in Queensland Courts)

This resource is current as of 30 June 2023

Duties of enduring attorneys

Meaning of terms

A dictionary in schedule 3 defines particular words used in the POA Act.

In simple terms:

• An Enduring Power of Attorney (EPA) is a formal document used by an adult (the principal) to authorise one or more persons (the attorneys) to make personal and/or financial decisions on the principal’s behalf if the principal lacks capacity to make those decisions.

• An attorney under an EPA means a person authorised to make decisions on behalf of another person.

• A principal under an EPA means a person who appoints an attorney to make decisions on that person’s behalf.

• Power for a matter means power to make all decisions about that matter.

• A person’s capacity for a matter means the person is capable of:

• understanding the nature and effect of decisions about the matter; and
• freely and voluntarily making decisions about the matter; and
• communicating the decisions in some way.

• A person’s impaired capacity for a matter means the person does not have capacity to make decisions about the matter.

General duties of enduring attorneys

An attorney must exercise power honestly and with reasonable diligence to protect the principal’s interests (section 66 POA Act).

Duty to comply with general principles

The general principles set out in s 6C of the POA must be applied by a person or other entity that performs a function or exercises a power under the POA or an enduring document. The general principles include:

• An adult is presumed to have capacity for a matter.
• An adult’s inherent dignity and worth, and equal and inalienable rights, must be recognised and taken into account.
• Empower an adult to exercise the adult’s human rights and fundamental freedoms.
• An adult’s right to participate to the greatest extent practicable in the development of policies, programs and services for people with impaired capacity for a matter.
• The importance of maintaining an adult’s existing supportive relationships must be taken into account.
• The role of families, carers and other significant persons in and adult’s life to support the adult to make decisions should be acknowledged and respected.
• The important of maintaining an adult’s cultural and linguistic environment and set of values, including religious beliefs, must be taken into account.
• For an adult who is Aboriginal or Torres Strait Islander, the importance of maintaining their cultural and linguistic environment and set of values must be taken into account.
• An adult’s privacy must be taken into account and respected.
• An adult’s personal information, including health information, must be protected on the same basis as other people’s personal information is protected.
• An adult’s right to liberty and security on an equal basis with others must be taken into account.
• An adult should not be deprived of the adult’s liberty except in accordance with the law.
• An adult’s right to participate, to the greatest extent practicable, in decisions affecting the adult’s life must be recognised and taken into account.
• An adult must be given the support an access to information necessary to enable the adult to make or participate in decisions affecting the adult’s life.
• An adult must be given the support necessary to enable to adult to communicate the adult’s decisions.
• To the greatest extent practicable, a person or other entity, in exercising power for a matter for an adult, must seek the adult’s views, wishes and preferences.
• An adult’s views, wishes and preferences may be expressed orally, in writing or in another way, including, for example, by conduct.
• An adult is not to be treated as unable to make a decision about a matter unless all practicable steps have been taken to provide the adult with the support and access to information necessary to make and communicate a decision.
• A person or other entity in performing a function or exercising a power under the POA in relation to an adult or other enduring document for an adult must do so in a way that promotes and safeguards the adult’s rights, interests and opportunities; and in the way that is least restrictive of the adult’s rights, interests and opportunities.
• A person or other entity in performing a function or exercising a power under the POA must recognise and preserve, to the greatest extent practicable, the adult’s right to make the adult’s own decision; and if possible, support the adult to make a decision.

Duty to comply with health care principle

An attorney exercising power for a health matter must also comply with the health care principle set out in s 6D of the POA Act.

When making decisions for a health matter, an attorney must also apply the general principles, as well as:

• the principle of non-discrimination requires that all adults be offered appropriate health care, including preventative care, without regard to a particular adult’s capacity; and
• any consent to, or refusal of, health care for an adult must take into account the principles of respect for inherent dignity and worth, individual autonomy and independence of persons.
• Taking into account information given by the adult’s health provider, the nature of the adult’s medical condition and prognosis, any alternative health care that is available, the nature and degree of any risks with proposed or alternative health care, whether health care can be postponed, the consequences for the adult if proposed health care is not carried out, consideration of the benefits versus burdens of the proposed health care; and the effect of the proposed health care on the adult’s dignity and autonomy.
• The wishes and views of an adult expressed when the adult had capacity in an advance health directive.

Duty to act in a principal’s best interests – an attorney must exercise a power granted by a principal in accordance with the terms of the EPA, and act honestly and with reasonable diligence to protect the principal’s interests (section 66 POA Act).

An attorney may be ordered to compensate the principal for losses or any other liability incurred by the principal as a result of the attorney’s failure to discharge this duty.

Duty of confidentiality

An attorney must not use confidential information gained by being an attorney, unless the attorney has a reasonable excuse or the use of such information is allowed by the POA Act (sections 74, 74A POA Act).

For example, an attorney may disclose confidential information about the principal’s affairs:

• If authorised or required under a regulation or another law;
• For a proceeding arising out of or in connection with this Act;
• If authorised by the person to whom the information relates;
• If authorised by the court or the tribunal in the interests of justice;
• If necessary to prevent a serious risk to a person’s life, health or safety; or
• For the purpose of obtaining legal or financial advice; or
• If reasonably necessary to obtain counselling, advice or other treatment; or
• In reporting a suspected offence to a police officer or assisting a police officer in the investigation of a suspected offence; or
• In assisting the public guardian, the public advocate or a public service officer in the performance of functions of the POA or Guardianship and Administration Act or Public Guardian Act.

Duty to avoid conflict transactions

All enduring attorneys must avoid acting if there is, or may be, a conflict of interests or a conflict of duties, unless the EPA or the principal authorised that action while the principal had capacity to do so. In that case, it is recommended that an attorney applies to QCAT or the Supreme Court for a direction about the conflicting matter.

Attorneys for financial matters have an additional duty not to enter into a transaction if there is, or may be, a conflict between a duty the attorney owes to the principal and the attorney’s interests (or the interests of a relation, business associate or close friend of the attorney) (section 73 POA Act).

There is a presumption that in a conflict transaction between a principal and attorney (or between a principal and a relative, business associate, or close friend of the attorney), the attorney induced the principal to enter into that transaction by undue influence (section 87 POA Act).

If a principal does not have capacity to authorise a conflict transaction entered into by the attorney, the attorney must seek the authority of QCAT or the Supreme Court before entering into such transaction.

Certain conflict transactions are authorised by the POA Act and may not need to be authorised by QCAT or the Supreme Court first, for example:

• certain dealings concerning property that is jointly owned between the attorney and principal (section 73(7) POA Act);
• if an attorney gives a gift or makes a donation on behalf of a principal in accordance with section 88 POA Act; or
• if an attorney provides for the needs of a principal’s dependants from the principal’s estate in accordance with section 89 POA Act. (See Powers of enduring attorneys)

Duty to keep records for financial matters

Attorneys for financial matters must keep accurate records and accounts of all dealings and transactions made on behalf of a principal (section 85 POA Act).

These records and accounts may be eventually audited by QCAT or the Supreme Court. It is recommended that attorneys for financial matters seek assistance from a book keeper or accountant to set up an appropriate recording system and budget for the principal if necessary.

A monthly statement of accounts is commonly used to record income and expenses incurred by a principal. Large expenses should be recorded separately and receipts for such expenses should be kept.

Duty to keep property separate

Attorneys for financial matters must keep their property separate from a principal’s property (section 86 POA Act), for example in separate bank accounts or storage places.

That obligation does not arise to property jointly owned by a principal and attorney before the EPA commenced. However, for jointly owned property, records must still be kept by the attorney clearly showing the principal’s share in the property.

This resource is current as of 30 June 2023

Powers of enduring attorneys

Meaning of terms

A dictionary in schedule 3 defines particular words used in the POA Act.

In simple terms:

• An Enduring Power of Attorney (EPA) is a formal document used by an adult (the principal) to authorise one or more persons (the attorneys) to make personal and/or financial decisions on the principal’s behalf if the principal lacks capacity to make those decisions.

• An attorney under an EPA means a person authorised to make decisions on behalf of another person.

• A principal under an EPA means a person who appoints an attorney to make decisions on that person’s behalf.

• Power for a matter means power to make all decisions about that matter.

• A person’s capacity for a matter means the person is capable of:

• understanding the nature and effect of decisions about the matter; and
• freely and voluntarily making decisions about the matter; and
• communicating the decisions in some way.

• A person’s impaired capacity for a matter means the person does not have capacity to make decisions about the matter.

General powers of enduring attorneys

• An attorney’s power for a matter is limited by the terms of the EPA granting that power.
• A principal can, for example, specify conditions and instructions in an EPA about when and how the attorney is to exercise a power given by the principal.

• A person should carefully read the EPA presented by the attorney to ensure he or she has the necessary power to act for the principal in a matter.

• Unless the EPA expressly states otherwise, an attorney is deemed to have maximum authority for a matter.

• If a principal does not want an attorney to have powers for all financial and personal matters, the EPA must expressly state for what matters the power is being granted. For example, if an EPA simply states “I appoint Mary as my attorney”, Mary has power for all financial and personal matters for the principal (s 77 POA Act).

• When an attorney exercises a power authorised by a principal, the attorney must exercise that power in a way that complies with relevant general principles and duties. (see Duties of enduring attorneys and Remedies for breaches by enduring attorneys)

Decisions that attorneys for all financial matters can make

Power for financial matters An attorney for all financial matters has power to make decisions for a principal about a number of financial and property matters, including one or more of the following (Schedule 2 POA Act):

• withdrawing from or depositing money into the principal’s bank account;
• paying maintenance and accommodation expenses for the principal;
• paying the principal’s debts;
• receiving and recovering money owed to the principal;
• carrying on a trade or business of the principal;
• performing contracts entered into by the principal;
• discharging a mortgage over the principal’s property;
• paying rates, taxes, insurance premiums or other outgoings for the principal’s property;
• preserving or improving the principal’s estate;
• undertaking a real estate transaction or a transaction involving the use of the principal’s property as security for the benefit of the principal; and
• legal matters relating to the principal’s financial or property matters.

Decisions that attorneys for all personal matters can make

Powers for personal matters An attorney for all personal matters has power to make decisions about a principal’s care and welfare, including for one or more of the following matters (Schedule 2 POA Act):

• daily issues such as diet, dress and general care;
• living, work and education arrangements for the principal;
• legal matters not relating to the principal’s financial or property matters (for example, applying for a domestic violence protection order for the principal);
• whether to consent to a forensic examination of the principal; and
• health care (other than special health care) by a health provider to diagnose, maintain and treat the principal’s physical and mental health.

When making health care decisions for a principal, an attorney must consider if the principal made an Advance Health Directive specifying the principal’s wishes about future health care. Directions made by the principal in an Advanced Health Directive will have priority over the attorney’s power for a health matter (section 35 POA Act).

If an EPA does not give an attorney power to make health care decisions for a principal, a statutory health attorney can make a decision for a principal with impaired capacity for a health matter (see GAA – Types of substituted decision making).

Decisions that attorneys for all personal matters cannot make

Special personal matters An attorney for all personal matters does not have power to make decisions for a principal about special personal matters regarding (Schedule 2 POA Act):

• making or revoking the principal’s will;
• making or revoking an enduring document of the principal;
• exercising a principal’s right to vote in a election or referendum;
• consenting to a principal’s marriage, civil partnership or sexual relationship, or to a dissolution of a marriage or civil partnership;
• adoption of a child of the principal;
• surrogacy arrangements for the principal;
• entering a plea on a criminal charge for the principal; and
• cultural recognition orders under the Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Act 2020.

Special health matters An attorney for all personal matters does not have power to make decisions for a principal about special health matters regarding (Schedule 2 POA Act):

• removal of tissue from the principal while alive for donation to someone else;
• sterilisation and termination of a pregnancy;
• participation in special medical research or experimental health care;
• electroconvulsive therapy or psychosurgery; and
• special health care prescribed under the Guardianship and Administration Act 2000 (Qld).

Certain special personal matters and special health matters may be authorised by QCAT or the Supreme Court.

Other powers of enduring attorneys

Right to information An attorney can access all the information that the principal would have been entitled to access if the principal had capacity, if the attorney needs such information to make informed decisions authorised by the principal (section 81 POA Act).

Confidentiality If an attorney receives confidential information on behalf of a principal, the attorney must respect the principal’s right to confidentiality and only disclose such information to the extent necessary to protect the principal’s interests.

Execution of documents An attorney may execute a document on behalf of a principal, with the attorney’s own signature or seal, if that is necessary or convenient for the exercise of a power given to the attorney by the principal. The document must be executed in a way that shows that the attorney executed it as attorney for the principal (section 69 POA Act).

Reimbursement and remuneration An attorney is not entitled to remuneration or a wage for acting for a principal. However, an attorney is entitled to be reimbursed by the principal for reasonable out-of-pocket expenses incurred in performing the attorney’s duties (for example, photocopying charges and reasonable travelling expenses).

An attorney may not have the right to reimbursement for out-of-pocket expenses if:

• the attorney is acting in a way not authorised in the EPA;
• the attorney is in breach of his or her duties; or
• the expenses are not reasonable having regard to all circumstances, including the principal’s financial position.

Gifts An attorney can give a gift or donate on behalf of a principal only if (section 88 POA Act):

• the gift or donation is of the nature of the principal made when the principal had capacity; or
• of the nature the principal might reasonably be expected to make; and

the value of the gift is reasonable having regard to all circumstances, in particular the principal’s financial position.

An attorney who is named a beneficiary under a will of the principal is not entitled to the inheritance until after the principal’s death.

Certain gifts may be a conflict transaction that must be authorised by QCAT or the Supreme Court before they are given (EPA 3 – Duties of enduring attorneys).

Maintaining principal’s dependants – an attorney for financial matters may provide for the needs of a principal’s dependants from the principal’s estate. However, what is provided must not be more than what is reasonable having regard to all circumstances, in particular the principal’s financial position (section 89 POA Act).

Certain maintenance payments may be a conflict transaction that must be authorised by QCAT or the Supreme Court before they are made (see EPA – Duties of enduring attorneys).

Investments An attorney for financial matters can make an investment for a principal (section 84 POA Act):

• if the investment has been authorised by QCAT or the Supreme Court; or
• which, if the investment were of trust funds by a trustee, would be an investment by a trustee exercising a power of investment under the Trusts Act 1973, guided by the prudent person rule (see sections 22 to 24 of the Trusts Act 1973).

If when an EPA commences a principal already had investment arrangements in place, an attorney for financial matters can generally continue those investments (section 84 POA Act). However, the attorney must invest with reasonable diligence, making prudent financial decisions to protect the principal’s interests (section 66 POA Act).

Can an attorney’s power change after the EPA commences?

QCAT or the Supreme Court may make orders about the powers that a principal is granted to an attorney (Chapter 6, POA Act). This could occur, for example:

• if an attorney is not discharging his or her duties;
• if a guardian and/or administrator is appointed for the principal;
• if a principal did not have capacity to make the EPA;
• if an EPA does not comply with the requirements of the POA Act;
• if a principal was induced to make the EPA by dishonesty or undue influence; and
• if a principal’s or other circumstances have changed since the EPA was made and the terms of the EPA are no longer appropriate to protect the principal’s interests.

What if there is more than one attorney?

• An EPA can state how attorneys are to share the power given to them by the principal. For example, jointly (unanimously), severally (independently), jointly and severally, or by majority.
• If a principal appoints more than one attorney for a matter, and the EPA does not state how the attorneys are to share the power given to them, the attorneys are jointly appointed and must make decisions for the principal unanimously (section 78 POA Act).
• It is important to keep in mind that an EPA is an instrument created to protect the rights and interests of a principal. If an EPA is not working for a principal, for example because of a family conflict preventing joint attorneys from making decisions in a timely and objective manner, the powers of an attorney may be removed and an appropriate independent decision-maker may be appointed.

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.

Enduring power of attorney toolkit

This factsheet is part of a set of factsheets about enduring attorneys under the Powers of Attorney Act 1998 (Qld) (POA Act).

The factsheets in this series are:

EPA 1 – Enduring power of attorney toolkit

EPA 2 – Powers of enduring attorneys

EPA 3 – Duties of enduring attorneys

EPA 4 – Remedies for breaches by enduring attorneys

These factsheets do not relate to general powers of attorney or to decision making for children and minors.

Meaning of terms

A dictionary in schedule 3 defines particular words used in the POA Act.

In simple terms:

• An Enduring Power of Attorney (EPA) is a formal document used by an adult (the principal) to authorise one or more persons (the attorneys) to make personal and/or financial decisions on the principal’s behalf if the principal lacks capacity to make those decisions.

• An attorney under an EPA means a person authorised to make decisions on behalf of another person.

• A principal under an EPA means a person who appoints an attorney to make decisions on that person’s behalf.

• Power for a matter means power to make all decisions about that matter.

• A person’s capacity for a matter means the person is capable of:

• understanding the nature and effect of decisions about the matter; and
• freely and voluntarily making decisions about the matter; and
• communicating the decisions in some way.

• A person’s impaired capacity for a matter means the person does not have capacity to make decisions about the matter.

What is an enduring power of attorney (EPA)?

• An EPA is a formal document used by an adult (the principal) to authorise one or more persons (the attorneys) to make decisions on the principal’s behalf.

• A valid EPA allows an authorised decision of an attorney to have the same legal effect as if the principal had made the decision (section 32 POA Act).

• An EPA is used to plan for a person’s future in case that person loses capacity to make certain decisions.

• An EPA is not revoked if a principal loses capacity for a matter.

• A general power of attorney differs from an EPA because a general power of attorney is revoked if a principal loses capacity. A general power of attorney is used while a person still has capacity to make decisions, for example if a person is overseas and needs to authorise an attorney to act on that person’s behalf.

Who can make an EPA?

• A person can make a valid EPA appointing an attorney if the person has capacity to understand the nature and effect of the EPA (section 41 POA Act).

• If a person does not have capacity to execute a valid EPA but needs assistance to make certain decisions, an application can be made to the Queensland Civil and Administrative Tribunal (QCAT) for guardianship and/or administration orders for that person (see GAA – Guardianship and Administration toolkit).

• If there is doubt about a person’s capacity, QCAT can make a declaration about whether or not that person has capacity to execute an EPA.

• A person cannot make an EPA if they do not have legal capacity.

Who can be an enduring attorney?

A person is only eligible to be appointed as an attorney under an EPA if:

• the person is at least 18 years; and
• the person is not a paid carer, health provider or a residential service provider for the principal; and
• for an EPA including financial matters, the person is not bankrupt or taking advantage of the laws of bankruptcy or similar legislation (section 29 POA Act).

A paid carer is someone who receives remuneration for services performed for the principal’s care (Schedule 3 POA Act). A person is not a paid carer for that purpose for receiving remuneration derived from:

• a carer payment or benefit from the Federal or State governments for providing home care for the principal (for example, a Centrelink Carer Allowance); or
• damages awarded by a court for gratuitous services performed for the principal’s care.

If a person does not have anyone suitable to be appointed as attorney, the person may appoint the Public Guardian and Public Trustee of Queensland as enduring attorneys for personal and financial matters, respectively.

How do I make an EPA?

There are a number of formal requirements for a valid EPA, including:

• the principal must have capacity to execute the EPA (section 41 POA Act);
• the EPA must be made in an approved form, by using either the EPA Short Form 2 or the EPA Long Form 3 published by the Queensland government, as the case may be;
• the EPA must be signed by the principal or an eligible signer (section 30 POA Act);
• the EPA must be signed and dated by an eligible witness (section 31 POA Act); and
• the EPA must be signed by the eligible attorney who accepted the appointment (section 44 POA Act).

Strict guidelines apply for witnessing an EPA. A person witnessing an EPA must certify that the principal seemed to have the necessary capacity to execute the EPA and understood the nature and likely effect of that document.

There are also a number of important factors that a person should consider before making an EPA including, for example, choosing an attorney who:

• is an honest and trustworthy person;
• understands the principal’s wishes and health care needs, and would make decisions consistent with these as much as possible;
• is responsible with money and competent to make financial decisions;
• would seek and consider professional advice when necessary; and
• has the necessary skills to act in accordance with legal requirements.

It is highly recommended that a person obtains legal advice before making an EPA or accepting an appointment as enduring attorney.

When does the power of an enduring attorney commence?

• For personal matters (including health matters), an attorney’s power only commences when the principal loses capacity to make those decisions independently (section 33 POA Act).

• For financial matters, a principal can specify in the EPA when, and under what circumstances, an attorney’s power commences. For example, the EPA could specify that an attorney’s power commences immediately, or commences only when the principal is diagnosed by a doctor to have lost capacity to make financial decisions.

• If an EPA is silent about when a power for a financial matter commences, the attorney’s power commences immediately after the EPA is validly executed.

• If an attorney’s power for a matter depends on the principal having impaired capacity for that matter, a person dealing with the attorney may ask for evidence of the principal’s impaired capacity, for example a medical certificate (section 33(5) POA Act).

• If there are concerns about whether an attorney’s power has commenced, an interested person may apply to QCAT or the Supreme Court for a declaration about a principal’s capacity and about whether an attorney’s power has begun (section 115 POA Act).

Can I register an EPA?

• If an EPA authorises an attorney to act in financial matters, and the attorney would likely act in a transaction involving land in Queensland, the EPA must be registered in the Power of Attorney Register of the Titles Registry (section 132 Land Title Act 1994 (Qld)).

• Only EPAs granting powers for financial matters can be registered. If an EPA relates only to personal matters, the EPA cannot be registered in the Titles Registry.

• It is recommended that the original EPA is kept by the principal in a safe place, and a certified copy of the EPA given to the attorney. The existence of an EPA can be proved by using a copy certified in accordance with section 45 POA Act.

• A principal should consider giving a certified copy of the EPA to trusted persons who should be informed of the EPA’s existence, such as the principal’s doctor, bank manager, lawyer, accountant and/or superannuation fund.

Can I resign as an attorney?

• While a principal has capacity for a matter, the attorney can resign as attorney for that matter by giving a signed written notice to the principal (section 72 POA Act).

• If a principal’s capacity for a matter is impaired, the attorney can only resign if authorised by QCAT or the Supreme Court (section 82 POA Act). In that case, the attorney should continue acting for the principal until new arrangements are put in place.

• If an attorney resigns, the EPA is revoked to the extent that it gives power to that attorney (s 55 POA Act).

Can I revoke my EPA?

• A principal can only revoke an EPA if the principal has capacity to make an EPA giving the same power (section 47 POA Act).

• Revocation of an EPA must be done in writing by executing the Revocation of Enduring Power of Attorney Form 6 published by the Queensland government.

• If a principal revokes an EPA, the principal must inform the attorneys of the revocation (section 46 POA Act).

• If an EPA is registered with the Titles Registry and is later revoked, the principal must also deregister the EPA by lodging a certified copy of the revocation form with the Titles Registry.

• It is recommended that a copy of the revocation form is provided to any party previously informed of the existence of the EPA, such as the principal’s doctor, bank manager, lawyer, accountant and/or superannuation fund.

Are there other ways to end an EPA?

A principal can expressly state in an EPA that the EPA will be revoked under specific circumstances (section 54 POA Act). For example, the EPA can state that it will be revoked if a specific purpose is achieved, or if the attorney is found to be in breach of certain duties.

An EPA is automatically revoked in the circumstances set out in the POA Act, for example:

• if the principal dies (section 19);
• if the principal gets married or enters into a registered relationship – unless the EPA states otherwise, the EPA is revoked to the extent that it gives power to someone other than the principal’s new spouse or registered partner (sections 52 and 52A);
• if the principal gets divorced or ends a registered relationship – the EPA is revoked to the extend that it gives powers to the principal’s divorced spouse or former civil partner (sections 53 and 53A);
• if the principal makes a new EPA – a previous EPA is revoked to the extent of any inconsistency (section 50);
• if an attorney dies – the EPA is revoked to the extent that it gives power to that attorney (section 58);
• if an attorney loses capacity for a matter – the EPA is revoked to the extent that it gives power to that attorney (section 56); or
• if an attorney becomes bankrupt or takes advantage of the laws of bankruptcy or similar legislation – the EPA is revoked to the extent that it gives power for financial matters to that attorney (section 57).

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.

Discrimination

Discrimination law governs the protection from and prevention of unlawful treatment on the basis of various attributes including race, sex, sexuality, age, disability, pregnancy, marital status, religion or political belief or activity.

Factsheets

• Discrimination claims in the Federal Circuit Court

External Resources

• Australian Human Rights Commission– The Australian Human Rights Commission is Australia’s independent human rights body which also helps people resolve complaints of discrimination and other breaches of human rights through their complaint handling service.
• Queensland Human Rights Commission (QHRC)– The Queensland Human Rights Commission receives and deals with complaints of discrimination and other contraventions of the Anti-Discrimination Act 1991 (Qld), and promotes human rights in Queensland.
• Discrimination and sexual harassment fact sheet– Legal Aid Queensland provides a detailed fact sheet on the law around discrimination and sexual harassment.

Where to go for help

• Queensland Advocacy for Inclusion (QAI)– Systems advocacy and legal advocacy organisation for people with disability in Queensland
• LawRight is an independent, not-for-profit, community-based legal organisation that operates a civil law referral service for pro bono legal representation and direct legal services for particular disadvantaged client groups. For more information about the help available, and the process for applying for help, please see the LawRight website at lawright.org.au. If your matter has not resolved in the Queensland Human Rights Commission (QHRC) and is proceeding to QCAT, LawRight may be able to help you through our Court and Tribunal Services.

This resource is current as of 21 February 2024

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.

Going to QCAT

The Queensland Civil and Administrative Tribunal (QCAT) is an independent tribunal that can resolve disputes, make and review decisions about anti-discrimination, administrative matters, building disputes, disputes over children and young people, guardianship, minor civil disputes, consumer and debt disputes as well as other civil matters if the amount in dispute is less than $25,000.

External resources

• Queensland Civil and Administration Tribunal – QCAT Homepage.

Where to go for help

• LawRight is an independent, not-for-profit, community-based legal organisation that operates a civil law referral service for pro bono legal representation and direct legal services for particular disadvantaged client groups. For more information about the help available, and the process for applying for help, please see the LawRight website at www.lawright.org.au. LawRight runs a Service to assist people representing themselves in QCAT.

This resource is current as of 21 February 2024

Going to QCAT factsheets

• Queensland Civil and Administrative Tribunal – Jurisdiction

• Unmeritorious proceedings and conduct causing disadvantage in QCAT

• Accessing your QCAT file

• Appealing a QCAT decision – Appealing a QCAT decision to the QCAT Appeal Tribunal or Queensland Court of Appeal

• Costs in QCAT

• Enforcement of a monetary decision of QCAT

• Hearings in the Queensland Civil and Administrative Tribunal

• QCAT review of a decision made by Child Safety

• Representation in QCAT

• Witnesses in QCAT

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.

Appealing a QCAT decision

This fact sheet outlines the options which may be available to you if you disagree with a decision made by the Queensland Civil and Administrative Tribunal (QCAT), and wish to appeal the QCAT decision to the QCAT Appeal Tribunal or Queensland Court of Appeal.

Reading this fact sheet about the options which may be available to you is the first step. You should then seek legal advice, either by engaging a private solicitor, visiting a lawyer at your local community legal centre, or applying for help from LawRight’s Court and Tribunal Services, before commencing any action.

References to legislation in this fact sheet are to provisions of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) and the Queensland Civil and Administrative Rules 2009 (QCAT Rules). An enabling Act may set out requirements which override these provisions. An enabling Act is another Act which gives QCAT the jurisdiction to hear a particular matter. For example, if the matter relates to guardianship and administration, then the enabling Act is the Guardianship and Administration Act 2000.

Applying to re-open a proceeding or set aside a default decision

There are alternative options to appealing a decision which may be available to you depending on the circumstances when the decision was made.

If you did not attend the hearing when the decision was made or if significant new evidence has become available to you since the time of the hearing, you may be able to apply to re-open the proceedings. (ss 136 – 141 QCAT Act).

For an example of QCAT’s consideration of a re-opening application see Davana Timber Industries Pty Ltd v Cool [2012] QCAT 201 (PDF 60KB).

If QCAT has made a decision by default because you did not respond to an application for a minor debt made against you, you may be able to apply to set aside the decision (s 51 QCAT Act). Factors which QCAT will consider in deciding an application to set aside a default decision include:

• whether the applicant can demonstrate a prima facie defence;
• whether the applicant can provide an explanation as to why they failed to file a response;
• whether the applicant delayed in making the application to set aside the decision;
• the applicant’s good faith, including their conduct in the proceedings before and after the default decision was made; and
• whether the other party would be prejudiced if the default decision was set aside.

For an example of QCAT’s consideration of a setting-aside application see Garland and Anor v Bulter McDermott Lawyers [2011] QCATA 151.

Deciding whether or not to appeal

It is very important to first apply for written reasons for the decision. A person is entitled to request reasons for a decision within 14 days after the decision takes effect, which is usually the day on which the decision was made (s 122 QCAT Act).

You can apply for request for reasons online using the QTranscripts online portal. More information about requesting reasons is available on the QCAT website.

QCAT will have 45 days to respond to your request. In response you may receive a transcript or audio recording of the part of the hearing where the reasons for the decision were provided orally (s 123 QCAT Act).

You will need to read through the reasons for the decision carefully, noting how QCAT came to its decision. In particular you should note:

1. What findings of fact were made?
2. What legal rules did QCAT apply?
3. How did QCAT apply the legal rules to the facts?
4. Were there any defects in the procedures that QCAT used?
5. Did QCAT consider everything that it was required to consider, or omit to consider anything that it was required to consider?

Answering these questions will help you to understand how QCAT made its decision and to identify any errors which would justify you commencing an appeal.

If the decision you are seeking to appeal has been made by another entity with appeal rights to QCAT, for example the Office of the Information Commissioner, then you will need to look at the relevant legislation to determine your rights to written reasons, which may be different to those provided by the QCAT Act.

Questions of law versus questions of fact

An appeal of a decision can be made on a question of fact or a question of law, or both.

If you believe QCAT made a decision which is factually wrong, for example, if you believe QCAT misinterpreted the evidence or made a wrong finding of fact, then you would appeal on a question of fact.

If you believe QCAT made a decision which is legally wrong, then you would appeal on a question of law. An appeal on any of the following grounds is an appeal on a question of law:

• the decision applies the wrong law to the facts of the case;
• the decision misinterprets the meaning of legislation;
• the decision fails to apply relevant law;
• the decision makes a finding of fact where there is no evidence to support that finding;
• the Tribunal did not have jurisdiction to make the decision;
• the Tribunal breached the rules of natural justice in making the decision.

For an example of QCAT’s consideration of an appeal based on questions of law see: Commissioner for Children and Young People and Child Guardian v Lister [2011] QCATA 22.

Whether you seek to appeal on a question of law or on a question of fact or both is relevant because it will impact upon whether you need to apply for leave (permission) to commence appeal proceedings.

The distinction between a question of fact and law is one which even the most senior judges of our courts disagree on from time to time so you should not be too concerned if you are unable to categorise the errors which you believe QCAT has made.

If you are unable to make the distinction, you can proceed to apply for an appeal on questions of mixed fact and law.

Can I appeal, and if so, where do I file my appeal?

Your appeal rights will be determined by the type of decision you are seeking to appeal and the type of QCAT member who made the decision.

QCAT members may be judicial or non-judicial.

• A judicial member is the President or the Deputy President of QCAT, or a judge of the Supreme or District Court or a former judge nominated by the President to constitute the tribunal.
• Non-judicial members are all other QCAT members, including adjudicators.

Matters heard by judicial members

QCAT decisions made by judicial members are appealed to the Queensland Court of Appeal.

An appeal can be made on a question of law as of right, or otherwise with the leave of the Court of Appeal (s 149 QCAT Act).

Also, the following decisions of the QCAT Appeal Tribunal can be appealed on a question of law with the Court of Appeal’s leave (s 150 QCAT Act):

• The Appeal Tribunal’s final decision; and
• A cost-amount decision (A cost-amount decision is a decision about the amount of costs to be paid, either fixed or assessed by QCAT under s 107 of the QCAT Act. See our factsheet Costs in QCAT).

Matters heard by non-judicial members

QCAT decisions made by non-judicial members are appealed to the QCAT Appeal Tribunal, which is an internal appellate jurisdiction within QCAT.

You will need to apply for the Appeal Tribunal’s leave to appeal (s 142(3) QCAT Act):

• on a question of fact or mixed fact and law;
• a minor civil dispute decision;
• a decision which is not QCAT’s final decision (unless it is a decision under the Guardianship and Administration Act 2000 (Qld) – see s 101 of that Act) and
• a costs order.

In deciding whether to grant leave to appeal the Appeal Tribunal will consider:

• Is there a reasonably arguable case of error in the primary decision?
• Is there a reasonable prospect that the applicant will obtain substantive relief?
• Is leave necessary to correct a substantial injustice to the applicant caused by some error?
• Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?

See

• Amundsen v Queensland College of Teachers [2011] QCATA 2 (PDF 50KB), which provides an example of the Appeal Tribunal’s consideration of these factors.

See also McDermott v Chief Executive, Office of Liquor and Gaming Regulation [2011] QCATA 065 (PDF 74KB), where the Appeal Tribunal considered an application for leave to appeal an Interlocutory order (non-final decision). In this case, it was confirmed that leave to appeal an interlocutory decision will not normally be granted unless there is sufficient reason to doubt the correctness of the decision and there would be a substantial injustice if leave to appeal is refused.

If you are thinking about appealing a minor civil dispute decision you may also wish to refer to the QCAT fact sheet, Appealing a QCAT decision.

No right to appeal certain decisions

When a person makes an application to QCAT or a matter is referred to QCAT, the principal registrar may decide to reject the application or referral on certain grounds (s 35 QCAT Act). The applicant may request that this decision be referred to QCAT for review (s 35 (4)(b) QCAT Act). The subsequent decision of QCAT, following the review, is not appealable (ss 142(2)(a) and 149(4) QCAT Act).

A decision to either grant or refuse an application to re-open proceedings is also not able appealable. Such a decision is final and cannot be challenged, appealed against, reviewed, set aside, or called in question in another way, under the Judicial Review Act 1991 or otherwise (s139(5) QCAT Act).

Powers and procedure – appeals to the Appeal Tribunal

The QCAT Appeal Tribunal is usually constituted by 1, 2 or 3 judicial members of QCAT. The normal rules and procedures of QCAT apply.

Application to appeal or leave to appeal

• An application for leave to appeal and/or appeal must be made using a QCAT Form 39, Application for leave to appeal or appeal (PDF 284KB).

Time limits

Typically, the Appeal Tribunal will process a leave to appeal and appeal application at the same time. However, the time limits for filing these applications are different, so you can file them separately if you wish.

If you do not need to apply for the Appeal Tribunal’s leave to appeal, then an application to appeal must be filed within 28 days after receiving written reasons for the decision (s143(4)(a) QCAT Act).

If you need to apply for leave to appeal, then that application for leave must be filed within 28 days after receiving written reasons for the decision (s 143(3) QCAT Act). If leave is given, then the application to appeal must then be filed within 21 days after the day leave is given (s143(4)(a) QCAT Act).

The Appeal Tribunal has a discretion to extend these time limits, but will only do so if an extension would not cause prejudice or detriment to a party to the proceedings that is not able to be remedied by an appropriate order for costs or damages (s 61(3) QCAT Act).

See further:

• Litzow v Racing Queensland Pty Ltd [2010] QCAT 414] where QCAT allowed an applicant to file an application for review of a decision out of time.
• Hargreaves v Burnitt [2011] QCATA 351 (PDF 54KB) where an extension of time was not granted because the applicant did not demonstrate a reasonably arguable case on appeal and did not provide sufficient reasons to explain their delay.

Powers on appeal

An appeal is not a chance to “have another go”. The Appeal Tribunal will be limited in what it can do by the functions set out in the QCAT Act. An enabling Act may also confer certain functions on the Appeal Tribunal, or vary or exclude functions conferred by the QCAT Act (s 6 QCAT Act)

If the appeal is on a question of law only, the Appeal Tribunal may:

• Confirm or amend the decision;
• Substitute its own decision;
• Set aside the decision and return the proceeding to QCAT or the other entity who made the decision for reconsideration; or
• Make any other order it considers appropriate (s146 QCAT Act).

If the appeal is on a question of fact or mixed law and fact, the Appeal Tribunal may:

• Confirm the decision;
• Amend the decision; or
• Substitute its own decision (s 147 (3) QCAT Act).

The Appeal Tribunal must decide an appeal on a question of fact or mixed law and fact by way of rehearing. This means that the Appeal Tribunal determines the rights and obligations of the parties under the law as at the date of the rehearing. The Appeal Tribunal may decide an appeal with additional (new) evidence, but this discretion is only exercised where that evidence:

• could not, by reasonable diligence, have been obtained for the original hearing;
• is credible; and
• might have produced an opposite result.

See Folkes v M J G Constructions (Aust) Pty Ltd [2011] QCATA 192, paragraphs 41 – 44 (PDF 149KB).

Reasons for decision

The Appeal Tribunal must give reasons for its final decision in writing to each party to an appeal, any other person required to be given a copy of the reasons under an enabling Act or the QCAT Rules, and any other person the Appeal Tribunal reasonably considers should be given notice of the decision (s 148 QCAT Act).

Powers and procedure – appeals to the Court of Appeal

An appeal to the Court of Appeal is made under the Uniform Civil Procedure Rules 1999 (Qld) (s 151 (2)(a) QCAT Act). The Court of Appeal is a division of the Supreme Court and is very different to the Appeal Tribunal.

Time limits

An appeal, or an application for leave to appeal, to the Court of Appeal against a decision of QCAT must be made within 28 days after the day the person is given written reasons for the decision being appealed against (s 151 (2)(b) QCAT Act).

Powers on appeal

In deciding an appeal on a question of law the Court of Appeal may:

• confirm or amend the decision;
• set aside the decision and substitute its own decision;
• set aside the decision and return the proceeding to QCAT for reconsideration, with or without the hearing of additional evidence; or
• make any other order it considers appropriate (s153 QCAT Act).

In deciding an appeal on a question of fact or mixed law and fact, the Court of Appeal may:

• confirm or amend the decision; or
• set aside the decision and substitute its own decision (s 154 QCAT Act).

An appeal on a question of fact, or mixed law and fact, must be by way of rehearing, with or without the hearing of additional evidence as decided by the Court of Appeal (s 154(2) QCAT Act).

See our fact sheet Appeals in the Queensland Court of Appeal – how to bring an appeal for more information.

Does an appeal stop the operation of the decision?

The start of an appeal does not affect the operation or enforcement of the decision being appealed against. However, the Appeal Tribunal, the Court of Appeal, or QCAT as constituted when the decision was made, may order a stay of the original decision until the appeal has been decided. A stay may be granted on the application of an appellant (ss 145 and 152 QCAT Act). A stay will only be granted if the appellant satisfactorily demonstrates that the balance of convenience favours staying the decision. See King v King [2010] QCATA 84 (PDF 85KB) where the Appeal Tribunal determined that the balance of convenience favoured the granting of a stay.

This resource is current as of 21 February 2024

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.

Accessing your QCAT file

When you make an application to the Queensland Civil and Administrative Tribunal (QCAT) you will need to lodge an application form and any supporting documents with the QCAT registry. The other party to the matter may also be required to file documents with QCAT to enable QCAT to deal with the application.

QCAT is also required to keep a register of certain details about each proceeding. It is sometimes a good idea to have a look at the record or register for your proceeding if you are not sure what stage the proceedings are at, to confirm what documents have been lodged with the court or to take copies of documents which are not in your possession.

This factsheet sets out how you can inspect the information kept by QCAT about your proceeding.

For information about the procedures that apply for access to information, see the fact sheet published by QCAT.

What is the record for a proceeding?

Under section 230 of the Queensland Civil and Administration Tribunal Act 2009 (Qld) (QCAT Act), the principal registrar must keep a record containing all documents filed in the registry for the proceeding.

Who can inspect the record for a proceeding?

A party to a proceeding may inspect the record for that proceeding, free of charge (s 230(2) QCAT Act).

A person who is not a party to a proceeding may inspect the record for a fee (s 230(3) QCAT Act).

The fees for inspection are set out in Schedule 1 to the Queensland Civil and Administration Tribunal Regulation 2009.

What is the register of proceedings?

Under section 229 of the QCAT Act, the principal registrar must keep a register of proceedings.

The register must contain the following information about each proceeding:

• The proceeding file number;
• The names of the parties;
• If the proceeding is withdrawn, the date of the withdrawal;
• If the proceedings have been transferred, or partly transferred, to another tribunal, court or other entity, then certain information about that transfer; and
• QCAT’s final decision in the proceeding (Rule 100 QCAT Rules 2009).

Who can inspect the register of proceedings?

The register of proceedings must be available for inspection by the public at the Brisbane office of the registry during office hours on business days (s 229(2) QCAT Act).

A party to a proceeding may inspect the part of the register relating to their proceedings without charge (s 229(3) QCAT Act). Another person may inspect the register upon payment of the fee prescribed in the QCAT Rules (s 229(4), QCAT Act).

Can I take copies of the record or register?

Any person can take copies of documents from the record or part of the register upon payment of a fee (s 229(4)(b) and s 230(3)(b) QCAT Act). The fees are set out in Schedule 2 to the QCAT Regulation.

How can I stop another person from inspecting the record or register for my proceedings?

PLEASE NOTE: Non-publication orders do not apply to matters being heard under the Guardianship and Administration Act 2000 (Qld) (s 101(1)(a), Guardianship and Administration Act 2000 (Qld)). For more information about restricting the publication of information under that Act, see our factsheet GAA – Functions and powers of the Tribunal.

QCAT has the power to stop the publication of documents and information other than to certain persons. This is known as a non-publication order. A non-publication order can be made over:

• The contents of a document or thing produced to QCAT;
• Evidence given at QCAT; or
• Identifying information of people who have appeared before QCAT or are affected by a proceeding (s 66(1) QCAT Act).

QCAT can only make a non-publication order if it considers it necessary:

• To avoid interference with the proper administration of justice;
• To avoid endangering the physical or mental health of a person;
• To avoid offending public decency or morality;
• To avoid publication of confidential information or information whose publication would be contrary to the public interest; or
• For any other reason in the interests of justice (s 66(2) QCAT Act).

If a non-publication order has been made over documents or information contained in the record for a proceeding or the register of proceedings, then only people specified in the order may access that information. You can apply to QCAT for a non-publication order under s 66(3) of the QCAT Act using QCAT Form 40 – Application for miscellaneous matters.

This resource is current as of 21 February 2024

Going to QCAT factsheets

• Queensland Civil and Administrative Tribunal – Jurisdiction

• Unmeritorious proceedings and conduct causing disadvantage in QCAT

• Accessing your QCAT file

• Appealing a QCAT decision – Appealing a QCAT decision to the QCAT Appeal Tribunal or Queensland Court of Appeal

• Costs in QCAT

• Enforcement of a monetary decision of QCAT

• Hearings in the Queensland Civil and Administrative Tribunal

• QCAT review of a decision made by Child Safety

• Representation in QCAT

• Witnesses in QCAT

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.