Making decisions for others as a guardian or administrator

An adult with capacity has the right to make legally recognised decisions about their life, such as health care choices, support services they may need, where they live and how they manage their finances.

If an adult has impaired capacity for making a particular decision, then someone else might be needed to make the decision for them.

Under Queensland’s guardianship system someone else can be given the legal authority to make decisions for an adult who doesn’t have the capacity to make such decisions.

What capacity means

Capacity is the ability to exercise the decision-making process.

Under our guardianship legislation, ‘capacity’ to make a decision means an adult’s ability to:

• understand the nature and effect of a decision
• freely and voluntarily make a decision
• communicate a decision in some way.

Capacity is specific to the type of decision to be made and when it is made.

Someone might have capacity to make certain types of decisions (e.g. a personal decision about where to live) and not others (e.g. a financial decision about whether to sell their house).

In Queensland, every adult is presumed to have capacity to make all their decisions until proven otherwise.

Learn more about capacity in the capacity assessment guidelines.

Entities involved

Queensland’s guardianship system protects the rights and interests of adults who have impaired capacity to make their own decisions.

This system comprises the following entities.

Queensland Civil and Administrative Tribunal (QCAT)

QCAT is an independent tribunal that can appoint people as guardian or administrator for an adult with impaired capacity for a matter and can make a formal declaration or finding about an adult’s capacity.

The tribunal also:

• resolves disputes
• makes decisions on matters for the first time (original decisions)
• reviews decisions made by government agencies and statutory authorities.

Office of the Public Guardian (OPG)

OPG is an independent statutory office established to protect the rights, interests and wellbeing of adults with impaired decision-making capacity. For adults with impaired decision-making capacity, the OPG:

• makes personal, health and legal decisions (not related to property and finance) if the Public Guardian is guardian or attorney
• investigates allegations of abuse, neglect and exploitation.

Public Trustee

The Public Trustee is a self-funding statutory authority that provides Queenslanders with:

• enduring powers of attorney
• free will services
• investment, executor and financial administration services.

Public Advocate

The Public Advocate is an independent statutory office that performs system advocacy to promote the rights, interests and independence of adults with impaired decision-making capacity through changes to the law, policies, services and facilities that affect them.

Community visitor program

The community visitor program (administered by OPG) is a program that protects the rights of adults with impaired decision-making capacity by conducting site visits to inquire about and resolve complaints about the standard of services provided by government and non-government organisations.

Supreme Court

The Supreme Court can appoint a guardian or administrator for a matter for an adult with impaired capacity and can make formal declarations or findings about an adult’s capacity.

Guardians appointed by QCAT

QCAT can appoint a guardian to make decisions about personal (including health) matters for an adult with impaired capacity.

Personal matters relate to an adult’s care and welfare, such as:

• where the adult lives and who they live with
• services and support provided to the adult
• whether the adult works, and if so, their role and the location of their work and employer
• who the adult has contact with
• whether the adult applies for a licence or permit
• day-to-day issues, such as diet and dress, daily activities
• legal matters, such as seeking legal advice, other than for financial and property matters.

Health care is a type of personal matter.

Health matters relate to the adult’s health care including medical treatments, procedures and services to treat both physical and mental conditions.

Most commonly, decisions about health matters are about consent to or refusing health care. For example, health decisions might include deciding whether to go to hospital, to have surgery, or to take a medication.

When an adult is nearing the end of their life, health care also includes stopping treatments that are aimed at keeping the adult alive or delaying their death (i.e. life-sustaining treatments).

In limited situations, guardians can also be authorised to make decisions about:

• the approval of chemical, physical or mechanical restraint
• restricting access to objects.

Learn more about guardians for restrictive practices.

Guardians cannot make decisions about:

• financial or property matters—unless they’ve also been appointed as the adult's administrator or attorney for financial matters under an enduring power of attorney
• special health care matters, including sterilisation or tissue donation
• special personal matters, including making or revoking a will, consenting to marriage or relinquishing a child for adoption.

Administrators appointed by QCAT

QCAT can also appoint an administrator to make decisions about financial matters for an adult with impaired capacity.

Financial matters relate to an adult’s finance and property, for example:

• paying everyday expenses, such as rent and bills for electricity, gas and water
• arranging deposits or withdrawals from the adult’s bank account
• paying rates, taxes, insurance premiums or other outgoings for the adult’s property
• making or seeking advice about investment decisions
• seeking legal advice in relation to the adult’s financial or property matters
• carrying on a business or trade
• signing contracts on behalf of the adult and performing contracts entered into by the adult (e.g. signing agreements relating to aged care homes)
• selling, mortgaging or purchasing the adult’s property.

Administrators cannot make decisions about personal matters (including health matters) unless they have also been appointed as the adult’s guardian or attorney for personal matters (including health matters) under an enduring power of attorney or advance health directive.

Learn more about administration for adults.

Who can apply for QCAT to appoint a guardian or administrator

Any interested person may apply to QCAT for the appointment of a guardian or administrator for an adult with impaired capacity for a matter.

This includes family members, close friends, professionals, or anyone with a sufficient and genuine concern for the rights and interests of the adult.

Adults with impaired capacity to make a decision can also apply on their own behalf.

Who QCAT can appoint as a guardian or administrator

A person appointed as a guardian or administrator must:

• be 18 or older
• not be a paid carer or health provider for the adult
• for an administrator appointment, not be bankrupt or taking advantage of the laws of bankruptcy.

In considering whether a person should be appointed as guardian or administrator, QCAT must consider:

• whether the person is likely to apply the general principles and, if appointed for a health matter, the health care principles
• the extent to which the adult’s and person’s interests are likely to conflict
• whether the adult and person are compatible, including whether the person has appropriate communication skills or appropriate cultural or social knowledge or experience to be compatible with the adult
• whether the person
  • is compatible with other guardians or administrators appointed
  • is available to act on behalf of the adult and be accessible to the adult
  • is appropriate and competent to carry out the functions and exercise the powers of a guardian or administrator, including whether the person has ever been a paid carer for the adult).

QCAT must also consider:

• the person’s criminal history, including the likelihood the commission of any offence in the criminal history may adversely affect the adult
• the nature and circumstances of any refusal of, or removal from, an appointment as a guardian, administrator, attorney or other person making a decision for someone else
• for an administrator appointment, the nature and circumstances of having been bankrupt and other related matters.

QCAT may appoint a person as a guardian or administrator for an adult on the application of the adult’s parent only if the tribunal has informed the parent of the tribunal’s power to appoint successive appointees for the matter.

QCAT may appoint the Public Guardian as guardian for a matter only if there is no other appropriate person available for appointment for the matter.

QCAT may also appoint the Public Trustee of Queensland or a trustee company as an administrator for an adult.

QCAT can appoint multiple guardians and attorneys and can specify the matters on which they can decide and how they must make decisions.

Learn more in the factsheet about general principles and health care principles under Queensland's guardianship framework.

Appointing administrators for missing adults

QCAT can appoint an administrator for a financial matter for a missing person where QCAT is satisfied that both:

• the person is missing
• there is, or is likely to be, a need for a decision in relation to the matter
• their financial interests would be adversely affected if an administrator is not appointed.

The appointment of an administrator for a missing person is automatically revoked (cancelled) if either:

• a coroner makes a finding under the Coroner’s Act 2003 that the adult has died
• the Supreme Court makes a declaration of death or grants a person leave to swear the death of the adult
• the adult’s death is registered under the Births, Deaths and Marriages Registration Act 2003.

QCAT must also revoke the appointment if satisfied that the adult is alive—either based on application by the administrator or other interested person, or on QCAT’s own initiative.

Obligations of guardians, administrators and informal decisions-makers

Guardians and administrators have important legal duties and obligations that they must comply with.

It is strongly recommended that a person seeks advice from a professional (e.g. a lawyer) when considering whether to accept an appointment.

These factsheets explain more about the duties and obligations of guardians and administrators in Queensland:

• Obligations of guardians and administrators
• General principles and health care principles under our guardianship framework

Guardians and administrators must apply the general principles when exercising their powers. If making health care decisions, they must also apply the health care principles.

Informal decision makers

Queensland’s guardianship legislation also recognises that a member of an adult’s support network may make certain decisions for them on an informal basis. They also need to apply the general principles.

What the Office of the Public Guardian does

The Office of the Public Guardian (OPG) works to protect the rights and interests of adults who have an impaired capacity to make their own decisions.

The head of the OPG is appointed by Governor-in-Council as the state’s official Public Guardian.

The Public Guardian works independently of government and non-government organisations to:

• make personal and health decisions for adults with impaired capacity if the OPG is their guardian or attorney
• investigate allegations of abuse, neglect or exploitation of adults with impaired capacity, even after an adult has died
• advocate and mediate for people with impaired capacity
• administer the community visitor program
• provide advice and assistance to guardians
• educate and advise the community about guardianship—contact OPG to request a presentation.

Reporting abuse

What to do if you think the adult is being abused or pressured

People with impaired capacity are vulnerable members of our society and may not be able to report their abuse or be in a position to report it.

If you suspect that an adult is being physically, financially or emotionally abused or pressured to make a decision, the priority must be to ensure the adult’s health, safety and well-being.

You should try to connect the adult with appropriate and relevant support services and prioritise their immediate safety. If you think the adult is in immediate danger, phone the police.

You can also contact the Office of the Public Guardian directly with your concerns—phone 1300 653 187.

OPG cannot investigate if:

• the abused person does not have impaired capacity
• a more appropriate body should investigate the allegation.

In these cases, OPG will refer the matter to other agencies.

Other support services include:

• Elder Abuse Helpline—free and confidential advice for anyone experiencing elder abuse or who suspects someone they know may be experiencing elder abuse
• 1800RESPECT—a national, confidential online and telephone counselling, information and referral service available 24 hours a day, 7 days a week
• Aged and Disability Advocacy Australia (ADA Australia)—free and confidential advocacy services for older people and people with disability across Queensland
• Community legal centres—for free legal advice about your situation
• Queensland Human Rights Commission—an independent government agency where you can make complains of discrimination, sexual harassment, vilification, victimisation and breaches of human rights
• Queensland Law Society—information about finding a solicitor for legal advice

More information

• Changes to our guardianship system
• Guardianship for adults