What decisions can be made for a person with impaired decision-making capacity without making an application to QCAT?
Some decisions can be made for a person who has impaired capacity for decision-making (the "Adult") without the need to apply to QCAT to appoint a guardian and/or an administrator for the person. The Tribunal will not appoint a guardian or administrator if the decisions that need to be made by the person can be appropriately made without a formal appointment of a guardian and/or administrator.
Before making an application to QCAT, please consider whether the Office of the Public Guardian is the more appropriate avenue for achieving the outcome you seek. The Office of the Public Guardian is an independent statutory office with a range of functions and powers in relation to an adult with impaired capacity.
The Public Guardian may investigate complaints and allegations about the actions of an attorney, guardian or administrator or another person acting or purporting to act under a power of attorney, advance health directive or order of the QCAT.
Find out what decisions can be made without making an application to QCAT
The appointment of a guardian by QCAT is not always required for a person with impaired decision-making capacity. This is because the person may still have the capacity to make certain decisions on their own, or they may be able to make certain decisions with support. Alternatively, the person may have appointed an attorney (under an enduring power of attorney with power to make decisions about personal matters) who could assist them to make this decision, or who could make this decision on their behalf.
The appointment of a guardian by QCAT should only be sought where:
(a) a decision is required, and
(b) the person does not have capacity to make it, even with support; and
(c) the person’s needs and interests will not be adequately met or protected if a guardian is not appointed.
Some examples of where the person’s needs and interest will not be adequately met or protected if a guardian is not appointed include:
- where the person has no-one to support them, and
- where there is significant disagreement between people as to what the decision should be.
The appointment of a guardian by QCAT is not always required before a person, even a person with impaired decision-making ability, enters an aged care home. This is because the person may still have the capacity to make certain decisions on their own, or they may be able to make certain decisions with support. Alternatively, the person may have appointed an attorney (under an enduring power of attorney with power to make decisions about personal matters) who could assist them to make this decision, or who could make this decision on their behalf.
The appointment of a guardian by QCAT should only be sought where:
(a) a decision is required, and
(b) the person does not have capacity to make it, even with support; and
(c) the person’s needs and interests will not be adequately met or protected if a guardian is not appointed.
Some examples of where the person’s needs and interest will not be adequately met or protected if a guardian is not appointed include:
- where the person has no-one to support them, and
- where there is significant disagreement between people as to what the decision should be.
- A spouse or de facto partner (as long as the relationship is close and continuing)
- A person who is responsible for the adult’s primary care (but is not paid for providing care unless the payment is a carer payment or other benefit from the Commonwealth or a State for providing home care to the adult) and is not a health provider for the adult or a service provider for a residential service where the adult resides;
- A close relative or friend who is not a paid carer for the adult, a health provider for the adult or a service provider for a residential service where the adult resides.
The appointment of a guardian by QCAT is not required for many decisions related to accessing the National Disability Insurance Scheme (NDIS).
A nominee may be appointed by the National Disability Insurance Agency (NDIA) for a person with impaired decision-making capacity, at their request or on the initiative of the NDIA.
Further information about having a nominee appointed is available on the NDIS website.
If you are unsure whether an application should be lodged, you can contact the Office of the Public Guardian to discuss it further.
An ACAT assessment (aged care assessment) is an assessment required for a person who needs to be approved for Government-funded services including residential aged care, transition care, respite care and home care. ACAT assessments can be arranged for a person without the need for the formal appointment of a guardian. ACAT provides further information about the representative process.
The Public Guardian may investigate any complaint or allegation that an adult is being, or has been, neglected, exploited or abused or has inappropriate or inadequate decision-making arrangements.
The Public Guardian may investigate complaints and allegations about the actions of an attorney, guardian or administrator or another person acting or purporting to act under a power of attorney, advance health directive or order of the QCAT.
The Public Guardian has the power to suspend the operation of all or some of an attorney’s power for an adult if the Public Guardian suspects, on reasonable grounds, that the attorney is not competent.
More information about the Public Guardian’s investigations process, how to report abuse and the other functions and powers of the Public Guardian can be found on the Public Guardian's website.
The Public Guardian may mediate and conciliate between attorneys, guardians or administrators if there is disagreement in making decisions for the Adult.
If there is disagreement about a health matter for an adult and the disagreement cannot be resolved by mediation by the Public Guardian, the Public Guardian may exercise the power for the health matter.
Further, if a guardian or attorney for a health matter or statutory health attorney for an adult, makes or refuses to make a decision about a health matter for an adult contrary to the general principles or the health care principles, the Public Guardian may exercise power for the matter.
For legal advice:
- Contact the private solicitor of your choice.
- Contact Community Legal Centres Queensland for details of your local community legal centre on 07 3392 0092.
- Use Queensland Law Society’s Find a Solicitor service.
- Contact Legal Aid Queensland on 1300 65 11 88.
For advocacy support for the Adult:
Queensland Advocacy Incorporated is an independent, community-based system and legal advocacy organisation for people with disability in Queensland | 1300 130 582 |
ADA Law, a division of Aged and Disability Advocacy Australia, provides legal advice, representation, and non-legal advocacy and information, to adults whose decision-making capacity is impaired or in question. | 1800 232 529 (freecall) |
Independent Advocacy Townsville provides assistance and referrals for people with a disability in North Queensland. | 1800 887 688 (freecall) |
For advocacy support for carers:
Carers Queensland’s Family Support & Advocacy Program provides carers with free support, information, advice and representation in regards to adult guardianship and administration matters. |
Urgent temporary orders - Interim orders
The Tribunal may make an interim (temporary) order until a final hearing of the applications before the tribunal, in circumstances where the tribunal is satisfied, on reasonable grounds, that:
- the adult concerned has, or may have, impaired capacity for decisions that need to be made; and
- there is an immediate risk of harm to the health, welfare or property of the adult because of the risk of abuse, exploitation or neglect, or self-neglect by the adult.
The purpose of the interim order is to address the risk to the adult or their property pending the final hearing.
The Tribunal may appoint the person (including the Public Guardian and/or Public Trustee) it considers most appropriate in the circumstances of the case.
Before lodging an application for an interim order all avenues for addressing the risk to the adult informally should be explored. For example:
- for most health care decisions, the adult’s statutory health attorney should be contacted;
- ACAT assessments can be arranged informally;
- Access to the National Disability Insurance Scheme should be able to be arranged without a formal appointment of a guardian.
- Family members may be able to secure an adult’s property for them while they are hospitalised.
- If you have concerns about the actions of an attorney you should consider making a complaint to the Office of the Public Guardian
As the purpose of an interim order is to protect the adult from an immediate risk of harm, the Tribunal may make an interim order without an oral hearing and without complying with the notice of hearing requirements in the legislation.
Term of an interim order
The maximum period of an interim order is 3 months. If the Tribunal has made an interim order, a hearing of the applications concerning the adult will occur before the interim order expires.
Active parties to a proceeding and others required to be notified of a hearing should receive a notice of hearing approximately two to four weeks prior to the scheduled hearing date. The notice of hearing will contain the date and the time of the hearing as well as the venue for the hearing.
Find out more information
