Queensland Civil & Administrative Tribunal
QCAT is an independent tribunal tasked with making determinations about decision making for adults with impaired capacity. QCAT cannot actually act as a decision maker for the adult concerned. Types of decisions making can include financial decisions and personal and health decisions.
The Guardianship and Administration Act 2000 states that there are 3 main elements to making a decision/capacity:
- Understanding the nature and effect of the decision;
- Freely and voluntarily making a decision; and
- Communicating the decision in some way.
If an adult cannot carry out part or all of these elements, then the adult has impaired decision-making capacity.
If an adult still has capacity, he or she may make an enduring power of attorney, which means that the appointed attorney can make financial and personal and health decisions under the power of attorney. This power continues even if the adult subsequently looses capacity.
If the adult has lost capacity to make decisions, then they cannot make an enduring power of attorney and an application to QCAT may be necessary.
QCAT for example can decide whether an adult has decision making capacity based on medical and other evidence, appoint an administrator (to make financial decisions) and/ or appoint a guardian (for personal and health decisions) if the current arrangements are not adequate.
Applicants who might request an appointment as an Administrator or Guardian for an adult can include the adult himself or herself, are most often family members, friends and advisors or carers who are concerned with the welfare of the adult.
Guardianship for adults.
The principles of the Guardianship & Administration Act 2000 seek to balance the rights of an adult with impaired decision-making capacity so they are as independent as possible and receive appropriate support. These principles are set out in the Act.
A proposed guardian must be over the age of 18 years, respect the principles set out in the Act, not have conflicting interests with the adult, are willing, competent and able to carry out the duties required of a guardian. A paid carer or health provider cannot apply. QCAT will need to be convinced that there is a specific need for an appointment of a guardian and that won’t always be possible.
If there is no one suitable QCAT may appoint the Public Guardian
Administration for Adults
An Administrator appointed by QCAT can make certain financial decisions on behalf of an adult with impaired capacity which include managing bank accounts and investments, paying bills, buying, selling or maintaining property etc
A proposed administrator can be a family member, friend or someone who has an interest in the adult’s welfare. They must be over the age of 18 years, not a paid carer, respect the principles set out in the Act and be willing to accept the role and all the responsibility it carries together with providing a financial management plan for the adult’s financial affairs to QCAT for approval.
If there is no one suitable or there is family conflict, QCAT may appoint the Public Trustee or a private trustee company to carry out the role.
The administrator must keep detailed records, submit accounts of the administration to QCAT and keep their assets separate to that of the adult. The administrator must also take financial advice, act honestly and not enter into conflict transactions unless authorised.
If you are an applicant in a matter before QCAT you can always seek legal advice and assistance beforehand with the forms and about your rights etc.
Normally parties involved in an administration or guardianship matter before QCAT represent themselves on the day, although on occasions, legal representation or an advocate is permitted in certain circumstances, eg complex questions of law or fact or the other party is represented.
Visit the QCAT website for more information.