Guardianship and Decision Making
If you have been appointed as a guardian, you can find out more about the process and requirements from the Office of the Public Guardian.
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 an interim order as an emergency measure when immediate action is required to protect an adult that has, or may have, impaired decision making capacity from the immediate risk of harm to their health, welfare or property because of abuse, exploitation, neglect or self-neglect.
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. They 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 in the Guardianship and Administration Act 2000, they can contact the Office of the Public Guardian and lodge a complaint.
The Public Guardian has the power to investigate complaints about the actions of a guardian. QCAT can suspend a guardian’s powers for three months to allow an application to come before QCAT.
If a guardian is suspended, the Public Guardian is automatically appointed for the period of the suspension.
Can QCAT review an appointed guardian?
There are three different QCAT guardian reviews. They include:
- requested reviews
- periodic reviews
- QCAT-initiated reviews.
An in-person hearing or a hearing based on written information only is held. This gives interested persons an opportunity to put forward their views about the actions of a guardian or any new or relevant information about the adult's circumstances that may affect the appointment.
Can I apply for a stay of a decision that someone is making for an adult with impaired decision making capacity?
You can apply for a stay to temporarily stop the decision being made until the final hearing. A stay can only be applied for if:
- QCAT has accepted an application regarding the adult but the hearing has not been held, and
- the guardian is called to make a decision for the adult that may be beyond their capacity to make, or
- there is a dispute about the decision.
What happens if there is a disagreement between an adult’s guardian and other people involved in making decisions for the adult?
Disputes or disagreements between guardians, administrators or attorneys can occur. The Public Guardian may also offer mediation to help resolve the disagreement. The Public Guardian can be contacted at: Office of the Public Guardian
If mediation fails to resolve a disagreement about a health matter, the Public 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.