Making Decisions for Others: The Guardianship and Administration Process
The freedom to make decisions about your life, work, finances and health care is a fundamental right in Australia. In some cases though, adults become unable to make decisions due to age, disability or illness.
When this happens, an adult can choose another person to make decisions on their behalf – this person becomes their Guardian.
Guardians play an important role in helping adults with limited “capacity” to make decisions about their lives. This is a major responsibility, and as such, the legal Guardianship process is subject to strict legal requirements.
In this article, we’ll discuss Queensland’s Guardianship process in detail and see how you can support a person who is unable to make their own decisions.
What is a Guardian?
A Guardian is a person appointed by the Queensland Civil and Administrative Tribunal (QCAT) to make decisions on behalf of an adult whose capacity is impaired. Guardians are permitted to make decisions about personal and health care matters, such as:
- Where the person lives
- Services and support that are provided to the person
- The person’s employment
- Day-to-day issues such as activities and access to the community
- Medical treatments and procedures
- Entering an aged care facility
- Legal matters (other than for financial or property matters)
Guardians are not permitted to make decisions about special health care matters, such as sterilisation and tissue donation. Guardians are also unable to make decisions about special personal matters, such as making a will or consenting to marriage.
What is an Administrator?
QCAT may appoint an Administrator to make financial decisions for an adult whose capacity is impaired. Administrators can make decisions about a person’s property and finances, including:
- Paying bills, rent and everyday expenses
- Investing money and managing investments
- Paying taxes, rates and insurance premiums
- Carrying on the person’s businesses
- Selling, purchasing or mortgaging property
- Legal matters (other than personal or health care matters)
Administrators are not permitted to make decisions about personal matters. However, if an adult needs both an Administrator and a Guardian, QCAT may appoint the same person to both roles.
Alternatively, an adult can create an advance health directive or enduring power of attorney that allows their Administrator to make decisions about personal matters.
Why You May Need to Apply to Become a Guardian for an Adult
Every adult has a right to make decisions about their own life. Issues such as ageing, disability, injury and illness may impair a person’s ability to make those important decisions. This may be for a short period of time, or it could be a long-term situation.
In many cases, an impaired person can take care of day-to-day decisions with informal support from the friends and family members in their life. In some circumstances though, an impaired adult may need formal representation to make decisions about personal, financial and health care affairs.
You may need to apply to become a Guardian if an adult in your life (such as a family member, spouse or friend) needs this type of formal support. You may also apply to become a Guardian if:
- They have no enduring power of attorney
- They do have an enduring power of attorney, but the power of attorney can no longer act
- They have a power of attorney who you believe is not acting in their best interests
Applications to become a Guardian are lodged through QCAT. This process is quite involved, and you will be expected to present evidence to support your application. It’s strongly recommended that you appoint a solicitor to represent you when applying to QCAT.
Who Can be Appointed as a Guardian?
Any interested person can apply to QCAT to be appointed as the Guardian or Administrator for an adult with impaired capacity. It’s common for Guardians to be family members, friends, professionals or anyone with a genuine concern for the rights of the impaired adult.
Adults with impaired capacity can also apply to QCAT to have a Guardian appointed.
A person who is appointed as a Guardian must:
- Be 18 or older
- Not be a paid carer for the adult
- Not be bankrupt (if appointed as an Administrator)
When appointing a Guardian or Administrator, QCAT will consider:
- Whether you are compatible with the impaired person
- If you are available to act on behalf of the adult
- If you are competent to exercise the powers of a Guardian or Administrator
- Any criminal history, and whether that criminal history will adversely affect the adult
- Whether you are likely to apply the general principles of legal Guardianship and act in the best interests of the adult
QCAT may choose to appoint one or more people to the role of Guardian or Administrator. QCAT may also dictate which matters a Guardian can make decisions about, and how those decisions must be made.
If an impaired adult doesn’t have an appropriate person to act as their Guardian or Administrator, QCAT may appoint the Public Guardian or the Public Trustee of Queensland. The Public Guardian and Public Trustee are independent bodies that protect the rights, interest and wellbeing of adults who are unable to make their own decisions.
Queensland’s Capacity Assessment Guidelines
QCAT may appoint a Guardian or Administrator if an adult has limited capacity. The term “capacity” refers to a person’s ability to make decisions. Under Queensland’s Guardianship legislation, a person has the capacity to make decisions if they:
- Understand the nature of a decision and its potential impact
- Can freely and voluntarily make decisions
- Are able to communicate their decisions in some way
It’s important to note that QCAT only considers a person’s capacity to make decisions. Making bad decisions is not the same as having impaired capacity. All people have the right to make decisions that may result in personal, financial, physical or psychological harm. This is called the “dignity of risk,” which allows adults to make choices that involve reasonable risks.
However, if a person demonstrates a consistent pattern of decision making that results in harm to themselves or their quality of life, QCAT may deem that person to have impaired capacity.
You can see the full capacity assessment guidelines on the QLD Government website.
Stages of the Guardianship Process
Applying to QCAT to appoint a Guardian or Administrator is a three-step process:
Stage One: A person with an interest in an impaired adult’s life can make an application to QCAT. The application must include a Form 10 – Application for Administration/Guardianship Appointment or Review. It also needs to include a medical report showing the person lacks the capacity to make their own decisions. These documents should be prepared and lodged with the help of a solicitor.
If a person’s welfare or financial situation is at immediate risk, you can apply for interim legal Guardianship.
Stage Two: QCAT will schedule a hearing – the impaired adult will be invited wherever possible. The proposed Guardian/Administrator will need to provide a detailed explanation of what they have achieved in the interim time period, and how they plan to assist the adult moving forward.
Stage Three: QCAT will appoint a Guardian. The Tribunal will generally request that the Guardian/Administrator provides updates on what they have been doing to assist the adult and take care of their affairs.
You are required to notify a person that you are making an application to QCAT on their behalf.
Appointing a Solicitor to Assist You
Navigating Queensland’s legal Guardianship process can be complex. In all cases, we recommend appointing a solicitor to assist and represent you when dealing with QCAT.
Every Guardian application is unique. QCAT reviews applications carefully and applies stringent tests to ensure the proposed Guardian will act in the best interests of an impaired adult. Working with a solicitor is the best way to manage your application when applying to be a Guardian or disputing the appointment of a Guardian.
Your solicitor can help by walking you through the expectations of the Tribunal, preparing your application and documentation, and representing you during hearings. This can greatly reduce the stress and time involved in the process and help you look after the best interests of an adult with impaired capacity.
Protect Your Loved Ones with Support from FP Lawyers
It can be an incredibly stressful experience when an adult loses the ability to make their own decisions. While we’re happy to say that many adults can benefit from informal support, there may come a time when your loved ones need formal representation by a Guardian or Administrator.
If that happens, it’s important to work with an experienced guardianship lawyer such as FP Lawyers. Navigating the legal Guardianship process and dealing with QCAT can be time-consuming and complex. Working with an experienced solicitor reduces the stress and can help you reach the best possible outcome, for you and your loved ones.
Our team is highly experienced in QCAT matters. We are able to provide advice and representation throughout the Guardianship process. From helping you prepare your application, to representation during hearings and accessing the services your loved ones need, FP Lawyers has the support you need.
Call us to find out more, or book a consultation with our family law firm Brisbane wide.
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