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.