Queensland’s guardianship system carries some of the highest stakes in civil law, with decisions determining where they live, who supports them, how their finances are managed, and the extent to which their autonomy is restricted.
These decisions are made by the Queensland Civil and Administrative Tribunal (QCAT), an independent body established in 2009, as a single, accessible forum for resolving civil, administrative and disciplinary matters. Guardianship cases account for almost half of all matters heard by QCAT and often involve adults whose decision-making capacity is under question.
With QCAT now under review as part of a statutory review of the Queensland Civil and Administrative Tribunal Act 2009, the Queensland Law Society (QLS) says that the guardianship system is under increasing strain. QLS members say rising demand and growing complexity are affecting fairness, participation and timely decision‑making.
Here’s what QLS is recommending.
The system is underfunded and safeguards are suffering
QLS says Queensland’s guardianship system is under resourced, and that this lack of resourcing impacts existing safeguards meant to protect people, including their ability to take part in decisions about their own lives.
The pressure isn’t limited to QCAT. QLS says the entire network that supports guardianship matters including the Public Guardian, Public Trustee, Public Advocate, legal assistance services, and the broader health and community sectors, needs proper funding. Without investment across the board, QCAT’s ability to actively gather and test evidence is limited.
QLS also points to the importance of guardianship within Queensland’s civil justice system. These matters are often complex, high‑stakes, and rely on strong safeguards, safeguards QLS says are hard to maintain under current funding levels.
It says funding decisions must be guided by the protection of human rights and supported decision-making, so adults can properly participate in decisions that affect their lives. That includes access to properly funded legal representation, rather than relying on informal workarounds or expecting families and services to make up the shortfall.
To address this problem, QLS is calling for a whole‑of‑government funding group, including Treasury and Queensland Health, to review how the system is funded and make sure boosting resources in one area doesn’t add pressure elsewhere in the guardianship system.
Support for a dedicated guardianship division inside QCAT
QLS says guardianship cases are often more complex and supports the creation of a dedicated guardianship division within QCAT, made up of specialist members and staff.
The registry, too, is a focus for reform. QLS argues that specialist staff are essential to assess applications early, identify inappropriate or potential harmful cases, including those linked to elder abuse, and make sure all relevant information is gathered before matters reach a hearing.
Making it easier for adults to participate
One of QLS’s strongest concerns is how hard it can be for adults to properly take part in their own guardianship proceedings. People involved in these matters often struggle to access documents, navigate complex processes, and, without adequate support, understand what orders could mean for their lives.
QLS recommends clearer, plain‑language information, earlier access to documents , and the use of a circle of support, both legal and non-legal, to help adults prepare for hearings.
QLS members also warn that adults are sometimes expected to “prove” they have decision-making capacity, despite the legal presumption that all adults have capacity unless shown otherwise. QLS says better stakeholder and community understanding of capacity and supported decision-making are needed to ensure that presumption remains central in practice.
Interim orders can be misunderstood and overused
Interim orders are temporary decisions made before a matter reaches a full hearing. QLS says here’s a common misconception that an interim order means an adult lacks capacity. In practice, QCAT is required to look at all the evidence before making any final decision about capacity.
QLS is calling for stronger safeguards before interim orders are made, including notifying adults when an interim application is filed, giving them a chance to respond, and providing support such as an oral directions hearing and access to a separate representative under section 125 of the Guardianship and Administration Act.
QLS says delays in the system are contributing to the heavy use of interim orders which are often used as a stopgap while people wait for a full hearing. It argues that if matters could be dealt with more quickly, there would be less need to rely on interim orders in the first place.
Decisions made ‘on the papers’ need stronger safeguards
Not all guardianship matters involve an oral hearing. Some are decided solely on written material provided to QCAT.
QLS says this approach can be efficient, but it can also undermine an adult’s rights if strong safeguards aren’t in place. It says appointing a representative for the adult, including a publicly funded representation where appropriate, is critical even when there is no oral hearing.
QLS also recommends that cases involving restrictive practices should always require an oral hearing, and that in all matters, adults should be given a chance to respond before a decision is made.
It’s also calling for more thorough checks before the Public Trustee is appointed in unopposed matters, to make sure all relevant parties have been identified and given an opportunity to be involved.
Access to medical evidence and reports
Medical evidence plays a critical role in helping QCAT make decisions. But QLS says many adults can’t afford medical assessments or written reports, particularly when capacity assessments are not covered by Medicare.
QLS recommends for these assessments to be properly funded, so health professionals don’t have to pass the full cost on to adults, or absorb the cost themselves, which it says it not sustainable.
It also says funding is needed to digitise health professional reports, making them easier to complete using existing software. QLS says these changes would help ensure adults aren’t disadvantaged simply because they cannot afford the reports the system relies on.
Concerns about hospital hearings
Hospital hearings are designed to help patients leave hospital as soon as possible, but QLS says the fast pace can come at the cost of procedural fairness.
QLS members report that hearings often happen very soon after an application is filed, when adults are still unwell, often without their usual supports, and sometimes without the documents they need to understand the case.
To strengthen safeguards, QLS recommends:
- automatic representation at every hospital hearing, so an independent representative can help put the adult’s views forward
- timely access to all documents
- giving the adult the option of a second medical opinion from someone outside the treating team
- a funded, onsite support program to assist adults through the hearing process
- hearings held in private, appropriate spaces, not busy clinical areas or shared wards
- post‑hearing support, especially where risks such as elder abuse are identified
QLS warns that without these protections, hospital hearings risk prioritising speed over the full participation of the adult, which can have significant and long term impacts for the individual.
Remote hearings – helpful, but not for everyone
Remote hearings have become a routine part of Australia’s justice system, and for many people, particularly those in regional and remote communities, they’ve made attending proceedings faster, cheaper and more convenient.
However, QLS notes that remote‑only processes can disadvantage older Queenslanders, people with hearing or communication difficulties, users who need interpreters, and members of the community who do not have access to a reliable internet service.
QLS is calling for a more flexible, hybrid approach. Accessibility needs should be considered and courts and tribunals should continue to offer non‑digital ways of accessing documents and records.
QLS members have also raised specific worries about how less tech-savvy tribunal users are coping with the move to digital systems. They warn that delays in accessing digital documents can leave some people unable to respond to material filed close to a hearing date.
A right to legal representation
QLS says adults involved in guardianship proceedings should have a clear right to legal representation.
Legal representation and advocacy can help narrow the issues early, give the tribunal clearer information, and make it easier to identify weak or inappropriate applications from the outset.
QLS is also calling for expanded, properly funded appointments under section 125 of the Guardianship and Administration Act, which allows QCAT to appoint an independent representative to put forward an adult’s views, wishes and interests.
It says these appointments should be used more widely in cases involving restrictive practices, domestic and family violence, including elder abuse, and situations where an adult may face indefinite detention.
QLS says these appointments are essential to breaking down barriers for people experiencing elder abuse, social isolation or financial disadvantage.
It’s members say adults often struggle to properly take part in proceedings without enough legal and social support before a hearing. They say stronger pre‑hearing processes, backed by funded legal assistance, are essential to help adults understand what’s happening and have their voices heard.
Call for specialist QCAT member training
QLS say guardianship cases should only be heard by legally qualified QCAT members with specialist training and expertise in this complex area of law.
It is urging more full-time member appointments, less reliance on sessional members, and structured training for new and existing members, including opportunities to observe and learn from experienced decision‑makers.
Why QLS’s voice matters
Guardianship and administration decisions can have far-reaching effects on a person’s life, shaping their autonomy, rights and day-to-day independence. QLS says the current system is too stretched to reliably deliver the safeguards the law is designed to provide .
The reforms proposed by QLS, ranging from improved specialisation and expanded representation to stronger safeguards and long‑term funding, are aimed at building a guardianship system that:
- enables adults to fully participate in decisions, with appropriate support
- upholds the legal presumption that adults have capacity
- reflects adult and human rights centred principles
- delivers timely, consistent outcomes
With the QCAT Review due to report on 31 July 2026, these recommendations are expected to play a key role in shaping future reforms.
Read the full QLS submission here.
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