The Queensland Civil and Administrative Tribunal (QCAT) is an independent, accessible Tribunal that efficiently resolves disputes on a range of matters. QCAT also makes decisions about a person who may have impaired capacity.
QCAT is bound by the principles of natural justice and the provisions of the Guardianship and Administration Act 2000 (Qld), specifically s 11B refers to the General Principles that must be applied.
To suggest a frequently asked question (FAQ) please email enquiries@qcat.qld.gov.au
What are the General Principles?
The General Principles must be applied by a person or other entity that performs a function or exercises a power under the Guardianship and Administration Act 2000 (Qld) and/or the Powers of Attorney Act 1998 (Qld) (or an enduring document). Also, a person making a decision for an Adult on an informal basis must apply the General Principles. The community is encouraged to apply and promote the General Principles. More information can be found in an Office of the Public Guardian Fact Sheet about the General Principles.
What is the Human Rights Act 2019 (Qld)?
The Tribunal has found that the Human Rights Act applies when exercising a power under section 12 of the Guardianship and Administration Act 2000 (Qld) to appoint a guardian (see NJ [2022] QCAT 283). As such, in considering an application, the Tribunal must make a decision which is compatible with the Adult’s relevant human rights that may be affected by the decision and that any limits to the identified human rights are reasonable and justifiable.
Who is ‘the Adult’?
The Guardianship and Administration Act 2000 (Qld) refers to the person about whom the proceedings before QCAT concern as ‘the Adult’.
Section 81(2) requires the Tribunal, to the greatest extent practicable, to seek and take account of the views, wishes and preferences expressed or demonstrated by the Adult; and the views of any member of the Adult’s support network.
The Tribunal may appoint a representative to represent the Adult’s views, wishes and interests, if, in a proceeding before the Tribunal-
(a) the Adult concerned in the proceeding is not represented in the proceeding;
(b) the Adult is represented in the proceeding by an agent the Tribunal considers to be inappropriate to represent the Adult’s interests.
A representative appointed under s 125 must have regard to any expressed or demonstrated views, wishes and preferences of the Adult; and to the greatest extent practicable, present the Adult’s views, wishes and preferences to the Tribunal; and promote and safeguard the Adult’s rights, interests and opportunities.
The Tribunal encourages the Adult to attend the hearing about a matter. As reflected in the General Principles, the Adult is presumed to have capacity for a matter. Adults with impaired capacity are the primary focus of the Guardianship and Administration Act 2000 (Qld).
What is capacity for decision-making?
The Guardianship and Administration Act 2000 (Qld) defines ‘capacity’ as:
(a) understanding the nature and effect of decisions about the matter; and
(b) freely and voluntarily making decisions about the matter; and
(c) communicating the decisions in some way.
A person may have capacity for some decision-making but not all depending on the complexity of the decision to be made and the support available to the Adult for decision-making from members of the Adult’s existing support network.
The Queensland Government Guidelines for assessing decision-making capacity provide general information about capacity, capacity assessment and the legal tests of capacity in Queensland.
What is a guardian?
QCAT may appoint a guardian to make certain personal decisions for an Adult who has been found by the Tribunal to have impaired capacity for making those decisions.
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.
A guardian may be appointed to make decisions about a personal matter, for example:
- where the Adult lives,
- with whom they live,
- the provision of services to the Adult including, where relevant, their access to the National Disability Insurance Scheme.
If the Tribunal is satisfied that the formal appointment of a guardian is necessary, the Tribunal may appoint:
- a person who is at least 18 years old;
- not a paid carer or health provider for the Adult; or
- the Public Guardian.
The Tribunal may appoint the Public Guardian as guardian for a matter only if there is no other appropriate person available for appointment for that matter.
When considering an application for the appointment of a guardian for an Adult, the Tribunal must make the least restrictive order in the circumstances of the case. There may be decisions that can be made by or for the Adult without the formal appointment of a guardian.
If an Adult has impaired decision making capacity for health care matters, such decisions may be made by a statutory health attorney without the need for a formal appointment of a guardian.
What is a Statutory Health Attorney?
An individual’s Statutory Health Attorney can make decisions about health care (other than special health care), that the person could lawfully make if the person had capacity for the matter.
In many cases it is not necessary to have a formal decision maker appointed by QCAT for health care decisions, as medical professionals can contact the person’s Statutory Health Attorney when a health care decision is required.
By law, a Statutory Health Attorney is the first available and culturally appropriate person (over the age of 18) from the following:
- 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 a paid carer, although they can receive a carer’s pension); or
- a close friend or relative.
For more information, refer to the Powers of Attorney Act 1998 (Qld).
If there is no one suitable or available, the Public Guardian can act as the person’s Statutory Health Attorney as a last resort, without any involvement of the Tribunal.
For more information refer to the Office of the Public Guardian’s guidelines for Statutory Health Attorneys.
What is an administrator?
QCAT may appoint an administrator to make certain financial decisions for an Adult who has been found by the Tribunal to have impaired capacity for making those decisions.
An administrator may be appointed for a financial matter to make decisions about, for example:
- paying bills,
- making and managing investments,
- buying and selling real estate.
If the Tribunal is satisfied that the formal appointment of an administrator is necessary, the Tribunal may appoint:
- a person who is at least 18 years;
- not a paid carer or health provider for the Adult;
- not bankrupt or taking advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966 (Cth) or a similar law of a foreign jurisdiction; or
- The Public Trustee of Queensland or a trustee company under the Trustee Companies Act 1968 (Qld); and
- after considering relevant matters as to the person’s appropriateness for appointment.
When considering an application for the appointment of an administrator for an Adult, the Tribunal must make the least restrictive order in the circumstances of the case. There may be decisions that can be made by or for the Adult without the formal appointment of an administrator.
What matters must the Tribunal consider in deciding whether a person is appropriate for appointment as a guardian or administrator?
Section 15 requires the Tribunal to consider certain matters in deciding whether a person is appropriate for appointment as guardian or administrator, including amongst other things:
(a) the General Principles and whether the person is likely to apply them;
(b) if the appointment is for a health matter – the health care principles and whether the person is likely to apply the principles;
(c) the extent to which the Adult’s and person’s interests are likely to conflict;
(d) whether the Adult and person are compatible including, for example, whether the person has appropriate communication skills or appropriate cultural or social knowledge or experience, to be compatible with the Adult;
(e) if more than 1 person is to be appointed – whether the persons are compatible;
(f) whether the person would be available and accessible to the Adult;
(g) the person’s appropriateness and competence to perform functions and exercise powers under an appointment order, including whether the person has ever been a paid carer for the Adult.
How can I apply for appointment as a guardian and/or an administrator?
You must complete and file in QCAT a Form 10 Application for administration/guardianship appointment. More information about how to apply to QCAT can be found here.
If you make an application or are proposed for appointment you will be an active party to the proceeding.
Who is an active party?
Section 119 of the Guardianship and Administration Act 2000 (Qld) provides that each of the following persons is an active party for a proceeding in relation to an adult:
a) the Adult (who the application is about)
b) if the Adult is not the applicant – the applicant;
c) if the proceeding is for the appointment or the reappointment of a guardian, administrator or attorney for the Adult – the person proposed for appointment or reappointment;
d) any current guardian, administrator or attorney for the Adult;
e) the Public Guardian;
f) the Public Trustee of Queensland;
g) a person joined as a party to the proceeding by the Tribunal.
For an application filed under Chapter 5B (restrictive practices), see s 80ZQ.
For an application for consent to the sterilisation of a child with an impairment, see s 80K.
Rights as an “active party”
Section 103 of the Guardianship and Administration Act 2000 (Qld) provides that each active party in a proceeding must be given a reasonable opportunity to present the active party’s case, to access relevant documents before the start of a hearing and during a hearing; and to make submissions about a document or other information accessed under s 103(1). Each active party in a proceeding, or a person the Tribunal considers has a sufficient interest in the proceeding, must be given a reasonable opportunity to access, within a reasonable time after a hearing, a document before the Tribunal that the Tribunal considered credible, relevant and significant to an issue in the proceeding. On request, the Tribunal must give access to a document or other information in accordance with s 103(4).
Section 123 of the Guardianship and Administration Act 2000 (Qld) provides that an active party in a proceeding before the Tribunal may appear in person. An active party may, with the Tribunal’s leave, be represented by a lawyer or agent (s 124).
I am not an “active party”. What happens?
If you are not an active party, you might receive correspondence from QCAT about an application and/or a hearing because QCAT must notify members of the relevant Adult’s family and support network. You might also be someone the Tribunal considers should be given notice of the application/s and/or the hearing.
I am not an “active party” but believe I should be. What do I do?
As discussed above, s 119 of the Guardianship and Administration Act 2000 (Qld) identifies a person who is an active party for a proceeding in relation to an adult. A person joined as a party to the proceeding is an active party. A person can apply to QCAT to be joined as a party to the proceeding by completing and filing a Form 12 Application for Miscellaneous Matters. More information about how to apply to QCAT can be found here.
Information about other QCAT applications
Further information is available on the QCAT website at qcat.qld.gov.au/case-types/decision-making-for-adults-with-impaired-capacity
Confidentiality and non-publication
Where it is necessary to avoid serious harm or injustice to a person, the Tribunal may, but only to the extent necessary, make a confidentiality order and/or a non-publication order. The Tribunal may make a confidentiality order and/or a non-publication order on its own initiative or on the application of an active party. For pre-hearing confidentiality and non-publication orders, see s 110 of the Guardianship and Administration Act 2000 (Qld). For orders made at the hearing, see s 109 for a confidentiality order and s 108 for non-publication orders.
Withdrawing an application before the hearing
If you have filed an application, you can apply for leave or permission to withdraw your application before the hearing by completing and filing a Form 58 Application for leave to withdraw an application or referral / Notice of withdrawal of application or referral. QCAT forms are available at qcat.qld.gov.au/resources/forms
When will the application or matter be finalised by QCAT?
QCAT receives a significant number of applications each week. The increased need for Queenslanders to access QCAT services has resulted in a prolonged wait time for the finalisation of applications within QCAT. QCAT actively monitors the timeframes to hearing and the nature of applications. Information about the average time to finalisation can be found at the QCAT website – qcat.qld.gov.au/applications/timeframes.
The time taken for a matter to be finalised is impacted by several factors including:
- the risk, if any, to the Adult; and
- the time required to gather the necessary information and material to prepare the application or matter for hearing.
Matters involving a person who may have impaired capacity are assessed as soon as possible to determine whether there is any identified risk to the Adult. It is therefore important that QCAT is notified of any change in the Adult’s circumstances and any increased risk to the Adult.
Before QCAT can progress a matter, further information may be required. This is because s 130(1) of the Guardianship and Administration Act 2000 (Qld), requires the Tribunal to ensure, as far as it considers practicable, that it has all the relevant information and material to hear and decide a matter.
QCAT is unable to provide an expected timeframe of when QCAT will progress the matter or about when the matter will be determined. Every matter is important to us and we will advance the matter when we can.
What to do if there is an immediate risk of harm to the health, welfare or property of the Adult
Section 129 of the Guardianship and Administration Act 2000 (Qld) applies for the making of an interim order if the Tribunal is satisfied, on reasonable grounds:
(a) the Adult concerned in an application has, or may have, impaired capacity for a matter; and
(b) there is an immediate risk of harm to the health, welfare or property of the Adult, including because of the risk of abuse, exploitation or neglect of, or self-neglect by, the Adult,
To apply for an interim order, you will need to file in QCAT a Form 54 Application for an Interim Order. This application must be filed together with a Form 10 Application for administration/guardianship appointment. QCAT forms are available at
qcat.qld.gov.au/resources/forms and more information about how to apply to QCAT can be found here.
Who will be notified of the hearing?
Section 118 of the Guardianship and Administration Act 2000 (Qld) provides that at least 7 days before the hearing of an application about a matter, the Tribunal must give notice of the hearing to the Adult concerned in the matter and, as far as practicable, to the following:
(a) if the Adult concerned is not the applicant - the applicant;
(b) a spouse of the adult who is in a close and continuing relationship with the adult;
(c) any child of the Adult who is at least 18 years and who is in a close and continuing relationship with the Adult;
(d) any parent of the adult who is in a close and continuing relationship with the Adult;
(e) any sibling of the adult who is in a close and continuing relationship with the Adult;
(f) if the Adult is an Aboriginal or Torres Strait Islander – any person who is regarded under Aboriginal tradition or Island custom as a child, parent or sibling of the Adult, and who is in a close and continuing relationship with the Adult;
(g) any primary carer of the Adult;
(h) all current guardians, administrators and attorneys for the Adult;
(i) the Public Guardian;
(j) the Public Trustee of Queensland;
(k) for a proceeding under Chapter 5B-
(i) the Chief Executive (Disability Services); and
- (ii) a relevant service provider providing disability services to the Adult; and
- (iii) if the Tribunal is aware the Adult is subject to a forensic order, treatment support order or treatment authority under the Mental Health Act 2016 (Qld) – the Chief Psychiatrist; and
- (iv) if the Tribunal is aware the Adult is a forensic disability client – the Director of Forensic Disability;
- (l) anyone else the Tribunal considers should be notified.
For the requirement to give notice of the hearing to other persons, see s 118(2). However, the Tribunal is not required to give notice to the Adult if any of the following apply:
(a) the Tribunal considers that notice to the Adult might be prejudicial to the physical or mental health or wellbeing to the Adult;
(b) the Tribunal considers the Adult is evading the hearing;
(c) the Adult is:
- (i) temporarily or permanently unconscious; or
- (ii) unable to be located after the Tribunal has made reasonable inquiries into the Adult’s whereabouts.
See s 118 generally for the requirement to give notice.
Where will the hearing be held?
The hearing will usually be held at either the Tribunal’s hearing rooms on level 10, 259 Queen Street Brisbane or at a Magistrates Court or other appropriate venue located as close as possible to where the Adult resides. Usually attendance at the hearing is in person but sometimes it can by telephone or videoconference or Microsoft Teams.
If you receive correspondence from QCAT advising the application or matter concerning the Adult will be heard “on the papers” it means a decision will be made without an oral hearing, on the basis of the written information received. This means no attendance at the hearing is necessary.
Making and notifying a decision
Section 156 of the Guardianship and Administration Act 2000 (Qld) sets out the requirements for making and notifying a decision. Section 158 applies if the Tribunal gives written reasons for its decision on an application about a matter including who will receive the reasons. You may request reasons for a decision by completing the request reasons for a decision form.
Publication about proceeding that discloses the Adult’s identity
Generally, information about a guardianship proceeding may be published. However, a person must not, without reasonable excuse, publish information about a guardianship proceeding to the public, or a section of the public, if the publication is likely to lead to the identification of the relevant Adult by a member of the public, or by a member of the section of the public to whom the information is published. There are some exceptions as provided under s 114A of the Guardianship and Administration Act 2000 (Qld). Further, in a relevant matter, the Tribunal may make an order authorising publication of information about a Tribunal proceeding that is otherwise prohibited (s 114A(5)).
Who can provide legal assistance?
- a private solicitor of your choice. See the Queensland Law Society’s Find a Solicitor Service qls.com.au/For_the_community/Find_a_solicitor
- Legal Aid Queensland on 1300 65 11 88 or legalaid.qld.gov.au/Home
- Community Legal Centres Queensland on 07 3392 0092 or communitylegalqld.org.au
- LawRight Self Representation Service on 07 3564 7561 or lawright.org.au/find-legal-help/court-tribunal-services/qcat-queensland-civil-administrative-tribunal or email qcat.cts@lawright.org.au
Who can provide advocacy support for the Adult?
Queensland Advocacy Incorporated (QAI) 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 NQ (Townsville) provides assistance and referrals for people with a disability in North Queensland. | 1800 887 688 (freecall) |
Who can provide advocacy support for carers?
Carers Queensland Family Support & Advocacy Program provides carers with free support, information, advice and representation in regard to Adult guardianship and administration matters. | 1300 747 636 |
Can a QCAT officer assist me with my application?
Information about “What registry staff can and cannot do” is available at: qcat.qld.gov.au/resources/legal-advice-and-representation
Applicable legislation, regulations and guidelines
- Guardianship and Administration Act 2000 (Qld)
- Guardianship and Administration Regulation 2022
- Queensland Capacity Assessment Guidelines 2020
- Powers of Attorney Act 1998 (Qld)
- Justice Legislation (COVID-19 Emergency Response—Documents and Oaths) (Transitional) Regulation 2021 (Qld)
- Disability Services Act 2006 (Qld)
- Disability Services (Disability Service Standards) Notice 2012 (Qld)
- Disability Services Regulation 2017 (Qld)
- Disability Services (Transitional) Regulation 2021 (Qld)
- Human Rights Act 2019 (Qld)
- Human Rights Regulation 2020 (Qld)
- Public Guardian Act 2014 (Qld)
- Public Guardian Regulation 2014 (Qld)
- Trusts Act 1973 (Qld)
- Aged Care Act 1997 (Cth)
- Quality of Care Principles 2014 (Cth)
Links to the Queensland and Commonwealth Acts can be found here at legislation.qld.gov.au and legislation.gov.au