Reviewing orders made by QCAT

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My name is Margaret Arthur. I’m a partner here at CRH Law. Today I’m going to be speaking with you about orders made by the Queensland Civil Administrative Tribunal and ways they can be reviewed on occasions.

We act in many guardianship and administration matters that proceed through QCAT, the Queensland Civil and Administrative Tribunal. It’s the case that the tribunal often appoints a person or an entity as the administrator and/or guardian for an adult, for a fairly extensive period, perhaps a period of three years or five years.

At the end of that period, the tribunal will hold its own review and decide whether it’s necessary to renew the appointment or perhaps to appoint somebody else to the role of decision maker.

People come to see us because issues arise during the course of that decision maker’s period and they question whether it’s possible for them to do anything about it before the next review by the tribunal. Essentially what they want to know is it possible for them to review the appointees position prior to the expiration of the term for which they’ve been appointed.

There’s a number of situations that can prompt people to come to see us about this. For example, the adult themselves may not feel comfortable with the person who is making decisions for them and they may question whether it would be possible for the tribunal to consider appointing an alternative person. Otherwise it may be a family member or members who are concerned about the way the decision maker is using their powers and question whether it’s possible for them to return the matter to the tribunal before the expiration of that decision maker’s term of appointment.

The answer is, yes they can apply back to the tribunal for what’s called a review of the decision regarding that person’s appointment. Under Section 31 of the Guardianship and Administration Act of Queensland, it’s possible to ask the tribunal or apply to the tribunal for a review of an appointee’s position, that is the appointment of the administrator and/or guardian prior to the expiration of their term.

However, it is necessary to show the tribunal that that person is no longer competent to continue in that role or there is somebody more appropriate to be appointed to the role. It’s quite specific in terms of when a review can be sought. Understandably, the tribunal does not want to have to review decisions that it’s made fairly recently and there’s a very compelling reason to do so.

This can make these sorts of applications quite difficult. It means that you really need to meet the technical requirements of section 31 of the guardianship and administrative act, otherwise you run the risk that your application may not succeed.

It’s very important to show why it is that the appointee is no longer competent or that somebody else is more appropriate to be appointed. It could for example be that your argument is that the appointee is no longer competent because they are either ignoring, neglecting, failing to protect the interests of the adult, or in some ways abusing their powers.

Often times, the underlying reason for seeking a review is that there’s a high level of conflict between the decision maker and other members of the family or even with the adult themselves which is making it impossible for the appointee to go about their duties.

It’s also been the case that we’ve been consulted on many occasions by the person who has been appointed and who is having to deal with the angst and the conflict that’s perhaps arising around the way they’re making their own decisions.

These matters can be quite complex and really quite technical. If you feel that you need to go down the path of seeking a review of a QCAT guardianship or administrative orders, it’s really very important that you do seek out legal advice before going down that path. Whatever the source of that legal advice, it’s very important that you’re assisted in thinking through the matters in terms of what evidence you’ve got, what evidence can you provide to the tribunal to back up your argument that the appointee’s no longer doing their job appropriately, that they’re not competent, or somebody else is more appropriate or if you’re the appointee as to why it is that you should continue in that role.