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What’s Involved in Making an Application to QCAT on Decision-Making for Adults with Impaired Capacity?

What’s Involved in Making an Application to QCAT on Decision-Making for Adults with Impaired Capacity?

By 2026, more than 22 per cent of Australians will be aged over 65, being an increase of six per cent since 2020. As Australia’s population continues to ‘grey’, issues around guardianship and administration for those people who lose decision-making capacity due to various health-related issues will become increasingly important.

Before losing capacity, a person may have completed and Enduring Power of Attorney whereby they have nominated another trusted person/s to make important personal and financial decisions for them.. However, if a person has not made an Enduring Power of Attorney or if the person/s appointed under an existing Enduring Power of Attorney are no longer suitable or appropriate to make decisions for the person, then an application to the Queensland Civil and Administrative Tribunal (“QCAT”) can be made for the appointment of a decision-maker for a person (“adult”).

In Queensland, QCAT is the Tribunal which deals with matters and decisions relating to adults with impaired capacity. QCAT is less formal than a Court and it is largely a self-represented forum, which means you do not need a lawyer to attend.

In Queensland, decisions relating to adults with impaired capacity is governed by:

  1. the Guardianship and Administration Act 2000 (Qld); and
  2. the Powers of Attorney Act 1998.

As a general principle, every adult is presumed to have capacity to make all of their own decisions, unless and until proven otherwise.

What types of applications can be made?

Declaration about capacity: QCAT has the power to make decisions about whether an adult has the capacity to make decisions in relation to a matter, or that the adult does not have capacity to make certain decisions. This application can be made by the adult themselves or by a person who has sufficient genuine concern for the rights and interests of the adult.

Before making such an application, you must first consider what decisions need to be made for the adult. You should also consider who else the adult would prefer to make decisions for them, should they be found to not have capacity.

Guardianship: An application can be made to QCAT to appoint a guardian to make personal decisions on behalf of an adult with impaired capacity. A guardian is appointed to make decisions relating to the adult’s personal and health affairs (including accommodation, healthcare, and other personal matters). Personal and health matters may relate to decisions about:

  • the adult’s care and welfare, such as where and who they live with;
  • support services which the adult may need; and/or
  • medical treatments, procedures and services to treat the adult’s health conditions, including decisions about life sustaining treatment.

Administration: An application can also be made for the appointment of an administrator to manage the financial affairs of an adult with impaired capacity. This includes decisions regarding the adult’s financial affairs, including decisions about:

  • the adult’s assets (including the sale of their home or other real property);
  • paying expenses for the adult; and/or
  • making investments or carrying on a business.

Revocation or suspension of existing appointments: Applications can be made to change, revoke or suspend the authority of:

  • an appointed guardian or administrator; or
  • Attorney/s appointed under an existing Enduring Power of Attorney previously made by the Adult;

If they are no longer the appropriate person/s to act in such a role or if their actions are inappropriate or contrary to the adult’s best interests.

QCAT appoints guardians and/or administrators for any period it deems appropriate, and appointments are generally reviewed by the Tribunal at least every five (5) years (or more frequently depending on the circumstances of the adult).

How to make an application to QCAT, before an application to QCAT is made, you must consider:

  1. What is the outcome you want to achieve for the adult?
  2. What supporting documents do you need to achieve the outcome for the adult?

If an application is being made for the appointment of a guardian and/or administrator, you must demonstrate to QCAT that:

  • there is a specific need for the appointment;
  • the existing decision-making arrangements for the adult are inadequate; and
  • you are a suitable person to be appointed as the adult’s guardian and/or administrator.

To initiate an application, QCAT requires the completion of specific forms which are available on their website or through their registry offices. These forms typically include information about the adult, the reasons for the application and details about other persons who should be notified of the application being made. Supporting documentation, such as medical reports and other reports prepared by health professionals or care and support workers regarding the adult’s decision-making capacity are also required.

When considering the appointment of a guardian and/or administrator, QCAT takes into account various matters to determine who is the best person/s to act in the adult’s best interests. These factors include (but are not limited to):

  • the adult’s existing supportive relationships and the suitability of potential appointees;
  • the ability of the proposed guardian or administrator to carry out their responsibilities effectively;
  • the adult’s views, wishes or preferences, if known, and if such views, wishes and preferences cannot be determined, then whether it is reasonably practicable to determine such views, wishes and preferences based on what has been previously expressed or demonstrated by the adult;
  • any person/s acting pursuant to previous appointments made by QCAT or through an Enduring Power of Attorney or Advanced Health Directive;
  • the potential impact of the appointment on the adult’s rights and interests;
  • whether the adult and the proposed person are compatible including, for example, whether the person has appropriate communication skills or appropriate cultural or social knowledge or experience, to be compatible with the adult; and/or
  • the extent to which the adult’s and person’s interests are likely to conflict.

The need to notify the parties involved

Once an application is made, QCAT will notify the adult (if necessary) together with any other relevant persons (including family members, carers and/or other persons who play a role in the adult’s day to day life) of the application and when the matter has been set for a hearing. The Public Guardian and the Public Trustee of Queensland may also be notified and required to attend the hearing.

What’s required when opposing an application

Any person with a legitimate interest in the matter may oppose an application for the appointment of a guardian or administrator. Factors that may support an objection include:

  • Concerns about the proposed appointee’s suitability, competence, or potential conflicts of interest;
  • Evidence that the adult has sufficient capacity to make decisions in certain areas or with appropriate support;
  • Where the existing arrangements (such as the adult’s Attorneys appointed under an existing Enduring Power of Attorney or informal decision-making supports) would be more appropriate and better serve the adult’s interests;
  • Where there is a more appropriate or suitable person/s to act as the guardian and/or administrator for the adult (rather than the proposed appointee); and
  • Concerns about the potential impact of the appointment on the adult’s rights and autonomy.

A medical report with respect to the adult’s capacity together with other evidence may be required to support any application opposing the appointment of a guardian or administrator.

QCAT will carefully consider all submissions and objections before making a final determination, with the overarching goal of appointing someone who will always act in the best interests of the adult.

If there is no appropriate and suitable person within the adult’s family (or close friends), then the Public Guardian may be appointed as the guardian for the adult and/or the Public Trustee of Queensland may be appointed as the administrator for the adult.

The hearing process and need for good legal advice

Prior to the date of the hearing for the Application, QCAT will send a written ‘Notice of Hearing’ to the active parties (the applicant and the adult, if necessary) and any other person/s required to be notified. The length of time between lodging an application and the date of the hearing depends on a range of factors, including the complexity of the particular matter, whether a decision needs to be determined urgently and the availability of a venue and a Tribunal Member to hear the application.

We highly recommend that you seek the guidance of experienced legal professionals before undertaking any of the steps outlined in this article. Whether it is determining if an application should be made about a person’s decision-making capacity, making an application, or opposing, reviewing or appealing a QCAT decision, speaking with one of our solicitors is an advisable first step.