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Adult Guardian Matters (Qld)

Written by Fernanda Dahlstrom

Fernanda Dahlstrom holds a Bachelor of Laws, a Bachelor of Arts and a Master of Arts. She also completed a Graduate Diploma in Legal Practice at the College of Law in Victoria. Fernanda practiced law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practiced in family law after moving to Brisbane in 2016. Fernanda has strong interests in Indigenous and refugee law, human rights and law reform.

Adult guardianship in Queensland is handled by the Queensland Civil and Administrative Tribunal (QCAT). QCAT can appoint a person as an adult guardian in respect of a person aged over 18 who has impaired decision making. Guardians have the authority to assist in making certain decision for the person under guardianship. Adult guardianship is governed by the Guardianship and Administration Act 2000.

Decision making capacity

A person has impaired decision making capacity if they cannot go through the process of arriving at a decision and putting it into effect. Making a decision involves:

  • Understanding the decision’s nature and effect;
  • Freely and voluntarily making a decision;
  • Communicating the decision.

If an adult cannot carry out this process, they have impaired decision making capacity. An adult is presumed to have capacity until it is proven otherwise.

An adult may have decision making capacity in relation to some matters but not others.

When can guardians be appointed?

The Act specifies that QCAT may appoint an adult guardian if satisfied that an adult:

  • Has impaired capacity; and
  • There is a need for a decision or the adult is likely to do something that is likely to involve an unreasonable risk to the adult’s health, welfare or property; and
  • Without the appointment, the adult’s needs will not be adequately met or the adult’s interests will not be adequately protected.

QCAT may make the order on its own initiative or on the application of the adult, the public guardian or an interested person. QCAT will only make the order if it is satisfied that the existing decision-making arrangements are inadequate.

What can guardians make decisions about?

A guardian can generally make decisions about where the person under guardianship lives, what support services they receive, who they have contact with, their general health care and other day to day issues. They can also, in some circumstances, approve the use of chemical, physical or mechanical restraints or containment and seclusion measures.

Guardians cannot make decisions about financial or property matters, special health care matters (such as sterilisation) or special personal matters such as making a will.

Guardians should take into account the views of the person under guardianship where they are able to communicate them.

Who can make an application for adult guardianship?

Anyone with a genuine interest in the welfare of an adult who has impaired decision making capacity can apply for a guardian to be appointed. A person can also apply on their own behalf.

To be appointed as a guardian, a person must be over 18 and cannot be a paid carer.

If there is no one suitable to act as a guardian, QCAT may appoint the public guardian to act on the person’s behalf. QCAT can appoint more than one person to act as guardians for an adult. They may be required to make decisions together or separately.

Guardian duties

Guardians must abide by the principles of the Guardianship and Administration Act. They must act honestly and with diligence and in accordance with QCAT’s decisions.

Guardians may be appointed for a period of up to five years.

Removing an adult guardian

A guardian’s appointment ends automatically if the guardian becomes a paid carer or if the guardian was married to the adult when they were appointed and the marriage is dissolved. It will also end if the guardian or the adult dies.

A guardian can be removed if they have failed to discharge their duties or abused their authority, if they have contravened the Act, if there is no longer a need for a guardian or if they are no longer the appropriate person to act as guardian. They can also be removed because they no longer wish to act.

Reviewing the appointment

A person under guardianship or an interested party can apply for a review of the appointment of the adult guardian. This can be done if circumstances have changed or if there is new information.

A review gives the parties the opportunity to put forward their views about the current order and any new information that may affect the appointment. QCAT may then either continue the order, alter the order or revoke the order.

QCAT automatically reviews the appointment of adult guardians periodically as specified in the order. QCAT can also initiate the review of an order at any time.

The Guardianship and Administration Act strives to balance the human rights of persons with impaired decision making so that they remain independent and also receive the appropriate supports.

If you require legal advice in an adult guardian matter or in any other legal matter, please contact Go To Court Lawyers.

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