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Get The Facts

Introduction to Guardianship, Administration and Powers of Attorney - Fact Sheet

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Justice/Legal/Advocacy

Introduction to Guardianship, Administration and Powers of Attorney - Fact Sheet

This document is aimed at everyone who is involved with the care or wellbeing of an individual who can not make informed decisions about their own financial or non-financial affairs, or any individual who is concerned about their future care if they should become incapacitated.

 

This can be due to a temporary health condition or a temporary, permanent or likely to be permanent disability, including acquired brain injury, intellectual disability, dementia or mental illness.

 

This document is specific to Queensland. If you live elsewhere in Australia or anywhere outside Australia, please contact a local authority. Lawyers, the offices of members of parliament or your local government justice department or brain injury association are all good contacts.

 

All web addresses and contact information for organisations mentioned in this document are included at the end.

 

 

IMPAIRED DECISION-MAKING CAPACITY


The law recognises everyone's right to control their own lives. People are presumed to have the capacity to make decisions for themselves unless their incapacity is established.

 

Incapacity in decision making is referred to as Impaired Decision-Making Capacity. Capacity has three components:

 

  1. Understand:An individual must be able to understand the nature and effect of a decision.
  2. Decide:An individual must be able to come to a decision freely and voluntarily.
  3. Communicate: An individual must be able to communicate that decision to others.

Clearly, someone who is in a persistent vegetative state or a coma has impaired capacity. A person who, as a result of a persistently held delusion, believes that their thoughts are being externally manipulated may be judged to have impaired capacity. A person who is unable to communicate in a coherent manner due to a fine-motor coordination deficit or cognitive deficit also has impaired capacity. If it is possible to introduce a new system of communication - such as a highly customised form of sign language - then capacity may be restored.

 

It is important to note that simply making decisions that you perceive to be "bad" does not imply impaired capacity, and making decisions that are potentially harmful does not imply impaired capacity - every individual has the right to make decisions that may result in physical, financial, psychological or other harm. This is referred to as the "dignity of risk". A consistent pattern of decisions that result in harm to the person or their quality of life may suggest that there is impaired capacity.

 

 

Queensland Civil and Administrative Tribunal

The Queensland Civil and Administrative Tribunal (QCAT) provides a legal mechanism for ruling if an adult has impaired capacity, and providing for a guardian or administrator to make decisions on their behalf. The Tribunal has authority to appoint or unappoint guardians and administrators, and to set the limits of the authority of guardians and administrators.

 

The Tribunal also gives directions and advice to guardians and administrators and has the authority to monitor orders and register orders made in other States and some other countries. The Tribunal also gives consent for special health care.

 

 

Guardians

A guardian is someone appointed by the Tribunal to deal with the day-to-day personal decisions of an adult with impaired decision-making capacity. Guardians make decisions about personal but not financial matters. The authority of a guardian is determined by the Tribunal, and can be as specific or as broad as the Tribunal considers appropriate. Examples of guardianship orders include:

 

  • Suitable accommodation after the person in question leaves hospital and until accommodation is secured, at which point the order lapses.
  • All health-care decisions only.
  • Accommodation, social contact and service provision.

A guardian must be over eighteen years of age and not a paid carer or health provider for the person in question. Unpaid carers can be a guardian.

 

 

The Fact Sheet "A Guide To: Applying for a guardianship or administration order" on the Brain Injury Association of Queensland website at www.braininjury.org.au contains more information on this process.

 

 

Administrators


An administrator is someone appointed by the Tribunal to make financial decisions on behalf of an adult with impaired capacity. The process of applying to be an administrator is quite complex as the Tribunal demands a high standard of applicants - in essence, the process of application requires that a business plan be drawn up to cover expected future costs.

Administrators must be over the age of eighteen and not a paid carer or health provider for the person in question.

 

 

The Fact Sheet "A Guide To: Applying for a guardianship or administration order" on the Brain Injury Association of Queensland website at www.braininjury.org.au contains more information on this process.

 

 

Office of the Adult Guardian


The Office of the Adult Guardian (OAG) is the "Guardian of last resort." If the Tribunal decides that a guardian is needed for an individual, but there is no appropriate family member, friend or service provider who can take on that responsibility, then the OAG is appointed as Guardian.

 

The OAG has one very important additional responsibility: It has the power to investigate charges of abuse or neglect against an adult with impaired capacity.

 

In this role, the OAG has the authority to require someone to provide records or information and to suspend an Enduring Power of Attorney for up to three months during the course of an investigation. The OAG can also apply to QCAT for a warrant to enter premises and remove an adult where there is suspected immediate risk to that adult.

 

 

Public Trustee Office of Queensland


The Public Trust Office is a self-funded State Government agency that provides Queenslanders with financial, trustee, legal, property and associated services.

 

The Tribunal may appoint the Public Trustee Office of Queensland as administrator for an adult with impaired capacity if there is no appropriate individual close to the adult who will accept the responsibility, or if there is dispute over who should act as administrator. However, it is also possible for an individual to choose to put their financial affairs in the hands of the Public Trustee under their Disability and Aged Support program.

 

 

POWERS OF ATTORNEY

 

An attorney is an individual who makes decisions on your behalf. An attorney may have the same authority as a guardian or an administrator, or both, or have specific authority to make decisions in areas that you decide.

 

More information on powers of attorney is available from the Office of the Adult Guardian.

 

 

Statutory Health Attorney


A Statutory Health Attorney is someone with automatic authority to make health care decisions on behalf of an adult whose ability to make decisions is permanently or temporarily impaired. A person assumes the role of statutory health attorney as a result of their relationship with the patient - e.g. spouse or primary carer - and is not a formal arrangement. However, an enduring power of attorney, general power of attorney or advance health directive (see below) may have authority over a statutory heath attorney. This role ends when the patient regains capacity, however a statutory health attorney may make an application to become a guardian and/or attorney if the impairment appears to be permanent.

 

If you are acting as a statutory health attorney, it is a good idea to apply for guardianship as soon as it becomes clear that the impairment is likely to be permanent. Your status as statutory health attorney can be challenged, particularly if the decision-making capacity of the individual is in doubt. Your status as an appointed guardian can only be challenged at a QCAT hearing.

 

 

General Power of Attorney

A General Power of Attorney is a formal arrangement between yourself and another person which authorises that other person to make financial decisions on your behalf when you are absent - for example, overseas. It lasts for as long as you are absent.

 

The General Power of Attorney form is available on the website of the Department of Justice and Attorney General, Queensland.

 

 

Enduring Power of Attorney

An Enduring Power of Attorney is a formal arrangement between yourself and another person which authorises that other person to become your attorney in case you become incapacitated. It is a way of arranging guardianship and administration in advance, with a person whom you trust. The Enduring Power of Attorney can specify what decisions your attorney will have authority over and can be as specific or as broad as a guardianship order is. Once the agreement comes into effect, decisions made by your attorney have the same legal force as if you had made them yourself.

 

The General Power of Attorney form is available on the website of the Department of Justice and Attorney General, Queensland.

 

 

Advance Health Directive

An advance health directive, also known as a "living will", is a document which establishes your wishes regarding health care in the event of you becoming incapacitated. Anybody who is over the age of 18 and does not have a decision-making impairment may make an advance heath directive.

 

A directive can include refusing treatment, including life-saving treatment. The directive only has power when the medical team is aware of its existence, so make sure that sympathetic family members or friends are aware that you have made a directive.

 

Please note: Many people suggest that if you do not want to get resuscitated following a car accident or other serious injury, you should tattoo "Do Not Resuscitate" across your chest. This is not worth the price of the ink. Only a complete, signed and witnessed Advance Health

 

 

Directive form has legal authority.

 

The application form for a directive can be downloaded from the OAG website. Part of it needs to be completed by your GP and the form needs to be witnessed by a Justice of the Peace, Commissioner for Declarations, lawyer or Notary Public.

References and further information

WEBSITES AND CONTACT INFORMATION

 

 

 

 

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