Guardianship information
Guardianship Information Service
If you have been appointed as a guardian, you can find out more from the Office of the Adult Guardian's Guardianship Information Service (GIS). The GIS is a free service which can help understand more about the guardianship process and requirements.
What is impaired decision making capacity?
Impaired decision making capacity is the inability to go through the process of reaching a decision and putting it into effect. There are three elements to making a decision:
- understanding the nature and effect of the decision
- freely and voluntarily making a decision, and
- communicating the decision in some way.
If an adult is unable to carry out any part of this process for decision making, the adult is said to have impaired decision making capacity. Impaired decision making capacity is not ignorance, eccentricity, different ethical views, cultural diversity, poor communication, poor judgement or poor decision making.
It is important to note that all adults who are the subject of an application before QCAT are presumed to have capacity until QCAT determines otherwise.
What is capacity for a matter?
The Guardianship and Administration Act 2000 refers to capacity for a "matter". This means an adult may have capacity for decision making in some areas but not in others. For example, an adult may have capacity to make decisions of a personal nature such as where to live but not a decision relating to a serious health care matter. In this example, QCAT would take the least restrictive option and appoint a guardian to make health care decisions only.
What happens if the appointment is urgent?
QCAT has the power to grant interim orders as an emergency measure when immediate action is required to protect adults with impaired decision making capacity from situations of harm or risk. This is a temporary measure for the protection of the adult from abuse, neglect or exploitation.
QCAT can make an interim order without a hearing and then conduct the final hearing at a later date. Interim orders can be made for up to three months. Interim orders are only made in exceptional circumstances and will not be applied if there are appropriate people available to act as statutory health attorneys and the urgency is about health care for the adult.
Can a complaint be made about a guardian?
If a person suspects that a guardian is acting contrary to the general principles or the health care principle they can contact the Office of the Adult Guardian and lodge a complaint.
The Adult Guardian has the power to investigate complaints about the actions of a guardian. QCAT can suspend for a three month period the operation of the powers of a guardian to allow an application to come before QCAT.
If a guardian is suspended the Adult Guardian is automatically appointed for the period of the suspension.
Can QCAT review an appointed guardian?
There are three different reviews QCAT can conduct in relation to an appointed guardian. A hearing is held which gives interested parties an opportunity to put forward their views in writing about the actions of a guardian or any new or relevant information about the adult's circumstances that may affect the appointment.
Anyone with an interest in the matter can request a review - a guardian, an administrator, family member, the Adult Guardian, The Public Trustee of Queensland or the adult concerned.
Can I apply for a stay of a decision that someone is making for an adult with impaired decision making capacity?
An application for a stay of a decision which temporarily stops the decision being made until the final hearing can be held, can be made. A stay can only be applied for if an application about a decision for the adult has already be accepted by QCAT but the hearing has not yet been held, and a situation arises where the person is called to make a decision for the adult that may be beyond his or her capacity to make, or where there is a dispute about the decision.
Apply for a stay of a decision
What happens if there is a disagreement between an adult’s guardian and other people involved in making decisions for them?
Disputes or disagreements between guardians, administrators or attorneys can be referred to the Office of the Adult Guardian and settled through mediation.
If mediation fails to resolve a disagreement about a health matter, the Adult Guardian has the authority to make the decision but must advise QCAT of the details of the decision made. All parties should work closely together to ensure the best interests of the adult.