A snapshot of the guardianship jurisdiction in QCAT

On 17 October 2001, Queensland Parliament responded to the Queensland Law Reform Commission (QLRC) review undertaken in the early to mid-1990s relating to assisted and substituted decision-making for people with a “mental or intellectual disability”.¹

Parliament enacted the Guardianship and Administration Act 2000 (Qld) (the Guardianship Act) and later established the Guardianship and Administration Tribunal.

The Guardianship Act was government’s response to a failed legal system to give effective recognition to the basic human rights shared by all people. In the second reading speech for the Bill the then Attorney-General said:²

“People with disabilities share the same basic human rights common to us all. For too long, the legal system has failed to give effective recognition to those rights. This Bill establishes a tribunal and a Public Advocate to affirm the human rights of people with a decision-making disability and to empower such persons in the exercise of their rights.”

Fast forward to 1 December 2009 and the establishment of the Queensland Civil and Administrative Tribunal (QCAT). QCAT exercises original, review and appellate jurisdiction as conferred on the tribunal by an enabling Act and as provided under the Queensland Civil and Administrative Tribunal Act 2009 (Qld). The Guardianship Act and the Powers of Attorney Act 1998 (Qld) (Powers of Attorney Act) confer jurisdiction on QCAT.

The Guardianship Act and the Powers of Attorney Act contain a number of principles, including the general principles and health care principles, that reflect an adult’s fundamental human rights, dignity and freedoms to make their own decisions. For example, an adult is presumed to have capacity for a matter. In other words, a person is presumed to be able to make their own decisions about their personal, health and financial matters.

The general principles and health care principles must be applied by a person or other entity that performs a function or exercises a power under the Guardianship Act or the Powers of Attorney Act. Also, a person making a decision for an adult on an informal basis must apply the general principles in making a decision. The community is also encouraged to apply and promote the general principles.

In 2019, the general principles and health care principles to be applied in a guardianship proceeding were given prominence following legislative amendments.³ Amendments to the Guardianship Act and the Powers of Attorney Act in 2019 include, amongst other things, relocating the general principles and health care principles to the beginning of both Acts to ensure greater consistency with the United Nations Convention on the Rights of Persons with Disabilities.⁴

In the second reading speech for 2019 amending legislation, the then Attorney-General said:

“The relocation of the principles will give them greater prominence and will highlight the new principled approach to decision-making which requires powers and functions to be exercised in a manner that is consistent with human rights and contemporary practice.”⁵

Another amendment in 2019 to the Guardianship Act and Powers of Attorney Act includes clarification with respect to who can be a statutory health attorney by providing that a ‘relation’ includes a person who is regarded as a relative under Aboriginal tradition or Torres Strait Islander custom. QCAT is also empowered under the Guardianship Act to appoint a substituted decision-maker for a missing person.

The Guardianship Act establishes the Public Advocate, and prescribes the Public Advocate’s functions and powers. This includes, amongst other things, promoting and protecting the rights of adults with impaired capacity for a matter, promoting the protection of adults from neglect, exploitation or abuse; encouraging the development of programs to help the adults reach the greatest practicable degree of autonomy, promoting the provisions of services and facilities for the adults, and monitoring and reviewing the delivery of services and facilities to the adults.⁶ However, it is not the function of the Public Advocate to investigate a complaint or allegation that concerns a particular adult with impaired capacity for a matter.⁷

Guardianship in QCAT

As at 1 July 2022, the guardianship jurisdiction is one of QCAT’s largest jurisdictions. Guardianship work in QCAT continues to increase in size, volume and complexity, year on year. The following is reported in the 2021-22 QCAT annual report:

“The Guardianship jurisdiction is one of QCAT’s largest jurisdictions. With an ageing population, increased awareness of the effect of control on vulnerable Queenslanders, increased diagnosis and treatment of mental health and significant reform in the aged and disability sectors, the guardianship list is ever increasing in size, volume and complexity.”

QCAT’s reported statement about the guardianship jurisdiction being one of the largest jurisdictions is not surprising when considering the broad jurisdiction conferred upon it by the Guardianship Act and the Powers of Attorney Act. For example, QCAT is empowered to:

• make decisions about the capacity of an adult
• appoint guardians and administrators for personal and financial matters for an adult with impaired capacity for the relevant matter
• approve the use of restrictive practices in certain settings, such as approving the use of containment and seclusion or other restrictive practices
• approve decisions or proposed decisions by informal decision-makers
• authorise conflict transactions
• overtake an enduring power of attorney
• consent to the removal of tissue from the adult while alive for donation
• approve the sterilisation of the adult (known as special health care matters), and
• make orders about an enduring power of attorney and review existing appointments.⁸

In a relevant proceeding, QCAT can appoint a representative under s125 to represent the adult’s views, wishes and interests.

Appointing a guardian or administrator in the guardianship jurisdiction

The Guardianship Act and the Powers of Attorney Act confer power on QCAT to make a declaration, order, direction, recommendation or advice about something in, or related to, the relevant Act such as the Guardianship Act or the Powers of Attorney Act.⁹

A common occurrence in QCAT in the guardianship jurisdiction is the appointment, by order, of substituted decision-makers under s12, such as a guardian for a personal matter or an administrator for a financial matter, for an adult with impaired capacity for the relevant matter.

Section 33 of the Guardianship Act provides that, unless the tribunal orders otherwise, a guardian (or administrator) is authorised to do, in accordance with the terms of the guardian’s (or administrator’s) appointment, anything in relation to a personal matter (or financial matter where an administrator is appointed) that the adult could have done if the adult had capacity for the matter when the power is exercised.

In Bergman v DAW (Bergman), the Queensland Court of Appeal considered the construction of the Guardianship Act and whether the appointment of an administrator under s12 for an adult who retains capacity, deprives the adult of power to do acts within the administrator’s power during the period of appointment.

In Bergman, Muir JA observed that it is implicit in ss12 and 33 of the Guardianship Act that an administrator for all financial matters appointed under s12 assumes the powers in respect of financial matters of the adult in respect of whom the appointment is made, to the exclusion of the adult, except to the extent that the tribunal orders otherwise.¹⁰

His Honour said that the Guardianship Act contemplates that orders of the tribunal will identify the extent of any interference with an impaired adult’s decision-making capacity and that such orders address, where appropriate, the question of decision-making support.¹¹

In respect of an administrator appointed under the Guardianship Act, Muir JA said that the Act is remedial in nature and protective of the rights and property of incapacitated persons and, as such, the legislation should be construed liberally.¹²

QCAT’s power under the Powers of Attorney Act

QCAT has the same jurisdiction and powers for enduring documents as the Supreme Court of Queensland.¹³ An enduring document is an enduring power of attorney or an advance health directive.¹⁴

In BP v PM & Ors [2022] QSC 268 (BP), Henry J considered an application under the Powers of Attorney Act to authorise a conflict transaction. The attorney appointed under an enduring power of attorney applied to the court for authorisation of the proposed sale of the adult’s farm at market value to one of four siblings and his wife.

The adult in BP’s case was said to be “cognitively impaired by dementia”.¹⁵ Justice Henry identified the proposed sale of the farm as a conflict transaction according to s73(6) of the Powers of Attorney Act because it  “is a transaction in which there may be conflict… between… the duty of an attorney towards the principal; and… the interests of… a relation… of the attorney”.¹⁶

His Honour considered s118(2) of the Powers of Attorney Act and said that the court is required to answer two questions in the affirmative before deciding to give an authorisation:

(a) is the court satisfied the transaction accords with the general principles?

(b) should the court exercise its discretion to authorise the attorney to undertake the transaction?¹⁷

His Honour considered the general principles under the Powers of Attorney Act starting with the presumption of capacity (General Principle 1) and found there had been no improvement in the adult’s capacity. His Honour found the adult’s impairment so significant that it deprived her of capacity in financial matters, including the capacity to understand the real nature and consequences of the transaction in question.¹⁸

His Honour concluded that the proposed transaction was in accordance with the general principles and authorised the transaction.

A guardianship hearing must be held in public

A hearing by the tribunal of a guardianship proceeding must, generally, be held in public.¹⁹ Generally, information about a guardianship proceeding may be published.²⁰ 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.²¹

In a relevant matter, QCAT can make a limitation order, including, for example, if the tribunal is satisfied that it is necessary to avoid serious harm or injustice to a person. A limitation order includes, as set out below:²²

• an adult evidence order: to obtain relevant information from the adult concerned in the matter at a hearing in the absence of anyone else
• a closure order: to close the hearing or part of the hearing to all or some members of the public and exclude a particular person, including an active party, from a hearing or part of a hearing
• a confidentiality order: to withhold from an active party or other person a document, or part of a document, or information before the tribunal, and
• a non-publication order: to prohibit publication of information about a tribunal proceeding, the publication of which is not prohibited under s114A (the disclosure of the identification of the adult).

An example of a case where a non-publication order was made can be found in BP.The court’s reasons in BP were published in a de-identified format. His Honour reasoned that the nature of the case and the fact that the judgment published on the court’s website would be publicly searchable, made this an appropriate case in which to anonymise that online version of the judgment.²³

Who has standing to bring an application to QCAT?

For the purposes of the Guardianship Act, an application may be made by the adult concerned or, unless the Guardianship Act or Powers of Attorney Act states otherwise, another interested person.²⁴

An ‘interested person’ means a person who has “a sufficient and genuine concern for the rights and interests of the other person”.²⁵ Section 110(3) of the Powers of Attorney Act provides a list of persons who may apply to the court (or QCAT exercising the same jurisdiction), including and amongst others, the principal, a member of the principal’s family, an attorney, the Public Guardian or Public Trustee and an interested person.

Notice of a hearing must be given to the adult and others, as well as anyone else the tribunal considers should be notified.²⁶ Subject to some exceptions, notice must be given to a spouse of the adult who is in a close and continuing relationship with the adult, all current guardians, administrators and attorneys for the adult, the Public Guardian, the Public Trustee and particular people who have a close and continuing relationship with the adult.²⁷

Each active party in a proceeding must be given a reasonable opportunity to present the active party’s case and to access relevant documents.²⁸ The tribunal is required 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.²⁹

Adults with impaired capacity are the primary focus

In a guardianship proceeding, the tribunal must adhere to the general principles and, amongst other things, acknowledge the rights of the adult to achieve a balance between the right of an adult with impaired capacity to the greatest possible degree of autonomy in decision-making; and the adult’s right to adequate and appropriate support for decision-making.³⁰

The general principles under the Guardianship Act include, amongst other things, the presumption that the adult has capacity for a matter, recognition that the adult has the same human rights and fundamental freedoms, and recognition that the adult’s right to participate, to the greatest extent practicable, in decisions affecting the adult’s life must be recognised and taken into account.

The right of an adult with impaired capacity to make decisions should be restricted and interfered with to the least possible extent.³¹ Adults with impaired capacity are the primary focus of the Guardianship Act.³²

The tribunal is required to consider relevant matters under the Guardianship Act for a particular application such as, for the purposes of s12 and the appointment of a guardian or administrator for a relevant matter, whether the adult has impaired capacity for the personal matter or financial matter.

Capacity for a person for a matter, means the person is capable of understanding the nature and effect of decisions about the matter; and freely and voluntarily making decisions about the matter; and communicating the decisions in some way.³³

Capacity can involve matters of degree and is therefore decision-specific. In BP, Justice Henry said:

“…It is to be borne in mind that capacity can involve matters of degree. For example, a principal with minor cognitive impairment may retain capacity for a simple, minor transaction but not for a transaction which is more complex or consequential. As Applegarth J explained in Adamson v Enever & Anor, capacity is therefore ‘decision specific’…”³⁴

In considering whether a person is appropriate for appointment as a guardian or administrator the tribunal is also required to consider, amongst other things, the general principles and whether the person is likely to apply them.³⁵

Application of the Human Rights Act 2019 (Qld)

The Human Rights Act 2019 (Qld) commenced on 1 January 2020 and applies in a relevant guardianship proceeding.³⁶ The main objects of the Human Rights Act are to protect and promote human rights, to help build a culture in the Queensland public sector that respects and promotes human rights, and to help promote a dialogue about the nature, meaning and scope of human rights.³⁷

The Human Rights Act binds all persons, including the State and, to the extent the legislative power of the Parliament permits, the Commonwealth and the other States.³⁸ The Human Rights Act applies to, amongst other things, a court or tribunal, to the extent that the court of tribunal has certain functions, as provided under the Act.³⁹ Further, the Parliament and a public entity, to the extent that Parliament or the public entity has certain functions, as provided under the Act.⁴⁰

All statutory provisions must, to the extent possible that is consistent with their purpose, be interpreted in a way that is compatible with human rights.⁴¹ Subject to some exceptions, as provided under the Human Rights Act, it is unlawful for a public entity to act or make a decision in a way that is not compatible with human rights, or in making a decision, to fail to give proper consideration to a human right relevant to the decision.⁴²

Section 9(4)(b) of the Human Rights Act provides that a number of entities are ‘a public entity’. This includes, for example and amongst other things, a court or tribunal when acting in an ‘administrative capacity’.

An example of where QCAT has applied the Human Rights Act in a guardianship proceeding can be seen in NJ [2022] QCAT 283 (NJ).

In NJ, QCAT considered the application of the Human Rights Act in determining an application to appoint a guardian under s12. The tribunal observed that QCAT is a court of record⁴³ and that the Human Rights Act clearly contemplates that a court may also act in an administrative capacity.

The tribunal ultimately concluded that, in exercising the power under s12 of the Guardianship Act, the tribunal is acting in an administrative capacity and applied the Human Rights Act.⁴⁴

Public Guardian and Public Trustee in the guardianship jurisdiction

The Public Guardian and the Public Trustee are independent statutory bodies and may be appointed by the tribunal, in an appropriate case, as a substituted decision-maker for an adult with impaired capacity for the relevant matter.⁴⁵

The Guardianship Act provides that the Public Trustee is available as a possible administrator for an adult with impaired capacity.⁴⁶ The Public Trustee has been recognised as being available to help people in our community with their financial or legal affairs.⁴⁷

The Guardianship Act makes reference to the Public Guardian in respect of making an order for the appointment of a guardian, where applications can be made by the tribunal on its own initiative, the adult, the Public Guardian or an interested person.⁴⁸

The tribunal may appoint the Public Guardian for a personal matter only if there is no other appropriate person available for appointment for the matter.⁴⁹ A ‘personal matter’ includes, amongst other things, a matter relating to where the adult lives, with whom the adult lives, services provided to the adult, health care of the adult and a legal matter not relating to the adult’s financial or property matter.⁵⁰

A statutory health attorney for an adult’s health matter is authorised under the Powers of Attorney Act to make any decision about the health matter that the adult could lawfully make if the adult had capacity for the matter.⁵¹ The Powers of Attorney Act provides a hierarchy of relevant people such as a person who “is readily available and culturally appropriate” to exercise power for the matter.⁵²

In reviewing an existing appointment of a guardian, the tribunal may make an order removing an appointee, other than the Public Guardian, only if the tribunal considers the appointee is no longer competent; or another person is more appropriate for appointment.⁵³

Information about QCAT matters

The QCAT website has information about guardianship proceedings including links to relevant QCAT practice directions and other general information about how to make an application and what to expect in a guardianship hearing.

Joanne Browne LLB LLM is a full-time Senior Member of the Queensland Civil and Administrative Tribunal, is admitted as a solicitor and is an accredited mediator. Any views expressed are her own, and not those of the tribunal.

Footnotes
¹ Queensland Law Reform Commission, ‘Assisted and Substituted Decisions: Decision-making by and for people with a decision-making disability’, Report No.49 (QLRC R49), Vols 1, 2 (Draft Legislation) and 3 (Summary of Recommendations), June 1996.
² Queensland, Guardianship and Administration Bill Second Reading Speech, Legislative Assembly, 8 December 1999 (Hon. HJ Foley, Attorney-General and Minister for Justice and Minister for the Arts).
³ See Guardianship and Administration and Other Legislation Amendment Act 2019 (Qld) effective from 11 April 2019.
⁴ Queensland, Guardianship and Administration and Other Legislation Amendment Bill Second Reading Speech, Legislative Assembly 28 February 2019, 594.
⁵ Ibid.
⁶ Guardianship Act, ss208 and 209.
⁷ Ibid s209(2).
⁸ See the Guardianship Act and the Powers of Attorney Act for specific provisions relevant to the applications and orders that can be made.
⁹ See the Guardianship Act, s115(1) and the Powers of Attorney Act, s110(1).
¹⁰ [2010] QCA 143, [35].
¹¹ Ibid [36].
¹² Bergman [42].
¹³ Powers of Attorney Act, s109A. See also s8 of the Guardianship Act that provides the Guardianship Act is to be read in conjunction with the Powers of Attorney Act.
¹⁴ Powers of Attorney Act, s28.
¹⁵ BP v PM & Ors, [1].
¹⁶ Ibid [24].
¹⁷ Ibid [27].
¹⁸ Ibid [36].
¹⁹ Guardianship Act, s105.
²⁰ Ibid s114A(1).
²¹ Ibid s114A. See also, s114A(4) and (5) and the power to make an order authorising publication of information about a guardianship proceeding.
²² See chapter 7 of the Guardianship Act. QCAT can also make a pre-hearing confidentiality order in certain matters.
²³ Ibid [98].
²⁴ Guardianship Act, s115(2).
²⁵ Ibid, Schedule 4.
²⁶  Guardianship Act, s118.
²⁷ Ibid s118.
²⁸ Ibid s103. An active party will become aware of the documents by inspection of the file, see QCAT Practice Direction No.8 of 2021.
²⁹ Guardianship Act, s81(2).
³⁰ Ibid s5 and s6.
³¹ Ibid s5(d).
³² Ibid s11A.
³³ Guardianship Act, Schedule 4.
³⁴ At [31] and see Adamson v Enever & Anor [2021] QSC 221 [6].
³⁵ Guardianship Act, s15.
³⁶ See NJ’s case, [162].
³⁷ Human Rights Act 2019 (Qld), s3.
³⁸ Ibid s5(1).
³⁹ Ibid s5(2)(a).
⁴⁰ Ibid s5(2)(b) & (c).
⁴¹ Ibid s48.
⁴² Ibid s58(1).
⁴³ See Owen v Menzies [2013] 2 Qd R 327.
⁴⁴ NJ’s case, [165].
⁴⁵ See the Public Guardian Act 2014 (Qld) and the Public Trustee Act 1978 (Qld).
⁴⁶  Guardianship Act, s7(f).
⁴⁷ Young v Low and QBE Insurance (Australia) Ltd [2022] QSC 235, [36].
⁴⁸ Guardianship Act, s12(3). See also s14(1)(a)(ii) that provides when the tribunal can appoint a person as a guardian including the Public Guardian.
⁴⁹ Guardianship Act, s14(2).
⁵⁰ Ibid, Sch2, s2. A special personal matter or special health matter is not a ‘personal matter’, see Sch 2, ss 3 and 7.
51 Powers of Attorney Act, s62.
⁵² Ibid, s63.
⁵³ Guardianship Act, s31(4). See also s31(6) that provides the tribunal may make an order removing the public guardian as an appointee if there is an appropriate person mentioned in s14(1) available for appointment.