Changes to the Guardianship Act and related legislation
On 26 March 2019, the Guardianship and Administration and Other Legislation Amendment Bill 2018 was passed by Parliament.
The provisions of the Act affecting QCAT commenced on 30 November 2020.
The Guardianship and Administration Act 2000, Powers of Attorney Act 1998 and Public Guardian Act 2014 form the basis for the guardianship system in Queensland and the Act amends this legislation.
Key changes in the Act
Some key changes in the Act are as follows.
General principles and the health care principle
The general principles and the health care principle in the Guardianship and Administration Act 2000 have been redrafted to be more consistent with the United Nations Convention on the Rights of Persons with Disabilities and moved to a more prominent position in the legislation.
The Minister will be able to prepare guidelines to assist people when assessing an adult’s decision-making capacity.
Powers of attorney
Safeguards for powers of attorney will be enhanced, including strengthening eligibility requirements for appointing attorneys to protect against abuse.
The capacity needed for a person to make an Enduring Power of Attorney (EPA) or an Advance Health Directive (AHD) will be clarified.
The financial remedies available for principals where an attorney fails to comply with their duties will be improved. This includes giving QCAT the power to order an attorney, administrator or guardian—or former attorney, administrator or guardian—to compensate a principal or a principal’s estate.
The scope of conflict transactions (i.e. transactions resulting in a conflict of interests between the principal and the attorney) will be clarified, and the provisions revised to clearly reflect the need for attorneys and administrators to have prospective authority.
Administrators for missing persons
QCAT will be allowed to appoint an administrator for a missing person where satisfied (according to specific criteria) that the person is missing and that their financial interests will be significantly and adversely affected if an administrator is not appointed.
Making an interim order
Where QCAT makes an interim order for an adult because of an immediate risk of harm to the health, welfare or property of the adult, one of the grounds QCAT must be reasonably satisfied of will need to be that the adult has, or may have, impaired capacity.
Providing notice of a hearing
The meaning of ‘members of an adult’s family’ will be clarified in relation to the persons QCAT must notify about a hearing, to ensure only those in close and continuing relationships with the adult need to be notified.
Adult and support network’s views to be considered
When carrying out functions or powers under the Guardianship and Administration Act 2000, QCAT will be required to seek and consider the views, wishes and preferences expressed or demonstrated by an adult, and the views of any member of the adult’s support network.
Removing Public Guardian where other person available
QCAT will be able to remove the Public Guardian as an adult’s guardian, where—while reviewing the appointment—it finds that the Public Guardian is appointed and there is another appropriate person available for the appointment (e.g. another person in the adult’s support network).
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