Guardianship for Adults

Estates

What is a guardian?

A guardian is someone who is appointed by QCAT to help another person with impaired decision making capacity to make certain personal and health care decisions. This person has to ensure that the adult’s needs are met and their interests are protected.

A Guardian is appointed to make decisions such as where an adults lives, what support services they receive and the people they have contact with or visit. A guardian may also make decisions about general health care matters as well as other day-to-day issues.

However, guardians are not permitted to make decisions about:

  • financial or property matters unless they have also been appointed as the Administrator or as their Attorney for financial matters under an Enduring Power of Attorney document;
  • special health care matters which includes sterilisation or tissue donation; and
  • special personal matters including making or revoking a Will, consenting to a marriage or relinquishing a child for adoption.

How is a guardian appointed?

A guardian is appointed by the Queensland Civil and Administration Tribunal (“QCAT”).

Who can apply to be a guardian?

Anyone can apply to become a person’s guardian. This includes family members, close friends, professionals or anyone who has a genuine interest in the persons welfare.

Guardians must be over the age of eighteen (18) and must not be a paid carer for the adult, but this does not include someone who is receiving a carer’s allowance or payment. There are some occasions when QCAT may appoint the Public Trustee, such as when there is no one suitable or willing to be appointed as the adult’s guardian.

What are the guardian’s duties?

The guardian’s duties include to act honestly and with reasonable diligence and to act in accordance with the order made by QCAT.

Guardians also have the responsibility to abide by certain general principles which include:

  1. Presumption of capacity: an adult is presumed to have capacity for a matter;
  1. Same human rights: an adult is entitled to the same human rights regardless of their capacity;
  1. Individual value: an adult’s right to respect for his or her human worth and dignity as an individual must be recognised and taken into account;
  1. Valued role as member of society: an adult has the right to be a valued member of society and this must be recognised and taken into account;
  1. Participation in community life: the importance of encouraging and supporting an adult to live a life in the general community, and to take part in activities enjoyed by the general community, must be taken into account.
  1. Encouragement of self-reliance: the importance of encouraging and supporting an adult to achieve their maximum physical, social, emotional and intellectual potential, and to become as self-reliant as practicable, must be taken into account.
  1. Maximum participation, minimal limitations and substituted judgment: the adult’s right to participate in decisions, to the greatest extent practicable, should be recognised and taken into account.
  1. Maintenance of existing supportive relationships must be taken into account.
  1. Maintenance of environment and values: the importance of maintaining an adult’s cultural and linguistic environment and their set of values must be taken into account.
  1. Appropriate to circumstances: any power should be exercised in a way that is appropriate to the adults characteristics and needs;
  1. Confidentiality: an adult’s right to confidentiality of information must be recognised and taken into account.

Guardians must also apply the health care principles by making sure that whenever they required to make a decision about health care that:

  • the health care is necessary and appropriate to maintain or promote their health or well-being, and
  • is in the adult’s best interests and to greatest extent possible, reflects the adult’s views.

How long can a guardian be appointed for?

QCAT may appoint a guardian for a period of up to 5 years, however this is often reviewed before the end of that period.

What are a guardian’s powers?

When a person is appointed as a guardian, the QCAT order will outline their powers which will include the duration of the appointment and the extent of their authority, such as whether they have been appointed to make some or all personal and health care decisions. The order will also outline the number of guardians appointed and whether the guardians will make decisions together or separately.

How is a guardian removed?

The appointment of a guardian will automatically end if the guardian becomes a paid carer for the adult or if the guardian was married to the adult when the appointment was made and the marriage has since ended. The appointment will also end if the either the guardian or the adult dies.

Guardians can be removed when:

  • the adult no longer needs a guardian;
  • the adult’s needs have not been met according to the decision made by QCAT;
  • the guardian has neglected their duties or abused their decision making authority;
  • the guardian has contravened the Guardianship and Administration Act 2000;
  • the guardian is no longer competent to act as a decision maker;
  • another person is more appropriate to be the adult’s guardian; or
  • the guardian no longer wishes to act.

A guardian can withdraw from their role. They must apply to QCAT to do so and obtain QCAT’s permission to withdraw. Only once permission is given by QCAT does the guardians appointment and responsibilities end.

For any further information about applying to be a guardian or guardianship generally, please contact our Elder Law team at CRH Law.