What is a guardian?
A guardian is a person appointed by the Tribunal to make personal decisions for an Adult who has been found by the Tribunal to have impaired capacity for making those decisions.
A guardian may be appointed to make decisions about, for example:
- where the Adult lives,
- with whom they live; and
- the provision of services.
Guardians cannot make decisions about:
- Financial or property matters
- Special health care matters which include providing consent to sterilisation procedures, termination of pregnancy procedures or tissue donation
- Special personal matters including making or revoking a will, consenting to marriage or relinquishing a child for adoption
What happens when the Tribunal appoints a guardian?
When the Tribunal appoints a guardian for a person, the Tribunal will make a written order that sets out:
- who has been appointed as guardian for the adult
- the particular decision-making powers given to the guardian
- the term of the appointment (which will be no longer than five years)
- any other directions the tribunal considers appropriate.
A guardian must follow the terms of the Tribunal’s order.
Need for a guardian?
The Tribunal will not appoint a guardian for an adult if the decisions that need to be made by the person can be made without a formal appointment of a guardian.
For example, if a person does not have capacity to make health care decisions for themselves, their statutory health attorney can make those decisions for them.
- A spouse or de facto partner (as long as the relationship is close and continuing)
- A person who is responsible for the adult’s primary care (but is not paid for providing care unless the payment is a carer payment or other benefit from the Commonwealth or a State for providing home care to the adult) and is not a health provider for the adult or a service provider for a residential service where the adult resides;
- A close relative or friend who is not a paid carer for the adult, a health provider for the adult or a service provider for a residential service where the adult resides.
If there is no one readily available and culturally appropriate to exercise power for the matter, the Public Guardian is the adult’s statutory health attorney. Contact the Public Guardian's health care consent line for more information.
If there is disagreement about a health matter for an adult and the disagreement cannot be resolved by mediation by the Public Guardian, the Public Guardian may exercise the power for the health matter.
Further, if a guardian or attorney for a health matter or statutory health attorney for an adult, makes or refuses to make a decision about a health matter for an adult contrary to the general principles or the health care principles, the Public Guardian may exercise power for the matter.
The appointment of a guardian by QCAT is not required for many decisions related to accessing the National Disability Insurance Scheme (NDIS).
A nominee may be appointed by the National Disability Insurance Agency (NDIA) for a person with impaired decision-making capacity, at their request or on the initiative of the NDIA. NDIA provides further information about the nominee process.
An ACAT assessment (aged care assessment) is an assessment required for a person who needs to be approved for Government-funded services including residential aged care, transition care, respite care and home care. ACAT assessments can be arranged for a person without the need for the formal appointment of a guardian. ACAT provides further information about the representative process.
The Public Guardian may investigate any complaint or allegation that an adult is being, or has been, neglected, exploited or abused or has inappropriate or inadequate decision-making arrangements.
The Public Guardian may investigate complaints and allegations about the actions of an attorney, guardian or administrator or another person acting or purporting to act under a power of attorney, advance health directive or order of the QCAT.
The Public Guardian has the power to suspend the operation of all or some of an attorney’s power for an adult if the Public Guardian suspects, on reasonable grounds, that the attorney is not competent.
More information about the Public Guardian’s investigations process, how to report abuse and the other functions and powers of the Public Guardian can be found on the Public Guardian's website.
The Public Guardian may mediate and conciliate between attorneys, guardians or administrators if there is disagreement in making decisions for the Adult.
If there is disagreement about a health matter for an adult and the disagreement cannot be resolved by mediation by the Public Guardian, the Public Guardian may exercise the power for the health matter.
Further, if a guardian or attorney for a health matter or statutory health attorney for an adult, makes or refuses to make a decision about a health matter for an adult contrary to the general principles or the health care principles, the Public Guardian may exercise power for the matter.
Information for appointed guardians
A person who makes decisions for another adult about personal matters such as, for example, where the adult will live and the services they require must apply the General Principles.
For decisions about health care, the person must also apply the Health Care Principles.
The general principles and health care principles are set out in Guardianship and Administration Act 2000 and the Powers of Attorney Act 1998. The Principles set out the particular information and other matters the person making the decision must take into account as well as the approach the person must take when making a decision for the adult.
The person making the decision for the adult may be doing so:
- informally,
- as a guardian appointed by QCAT,
- as an attorney authorised under an enduring document or,
- for a health care matter, as the adult’s statutory health attorney.
Attorneys and guardians also have other duties and obligations under the relevant law. The appointment of a guardian will be subject to a review by the Tribunal.
If you have any questions or concerns about how to make personal decisions for another person, you should contact the Office of the Public Guardian.
A guardian must exercise their powers for an adult honestly and with reasonable diligence to protect the adult’s interests and follow the terms of the Tribunal’s order.
A guardian is under a continuing duty to advise the tribunal of anything of which the guardian has not previously advised the tribunal and would be required to advise the tribunal if the tribunal were considering whether to appoint the guardian. For example, if a guardian becomes no longer eligible to be a guardian because they become a paid carer for the adult.
A guardian may be subject to a penalty if they do not comply with those obligations.
If there are two or more people who are guardians for an adult, they must consult with one another on a regular basis to ensure the adult’s interests are not prejudiced by a breakdown in communication between them.
Guardians for an adult who may exercise power for a matter jointly must exercise the power unanimously. If it is impracticable or impossible to do so, one or more of the guardians or another interested person for the adult may apply for directions to the tribunal.
Guardians have a right to all information the adult would have been entitled to if the adult had capacity and which is necessary to make an informed exercise of power.
If you have been appointed as a guardian, you can find out more about the role from the Guardianship Information Service. This is a service offered by the Office of the Public Guardian providing information to proposed and appointed Private Guardians on the rights, responsibilities and legal requirements of a Guardian, as well as good decision-making practices and legislative provisions.
The Guardianship Information Service can be contacted on 1300 653 187 or publicguardian@publicguardian.qld.gov.au
You may also consider obtaining legal advice.
The QCAT Registry will notify the parties in writing when a review of the appointment of a guardian commences.
The Tribunal will review the guardianship appointment at the time specified in the Tribunal’s order, or if the Tribunal becomes aware of a change to the Adult’s circumstances, or other new information that may affect the appointment, including if the guardian is not complying with the terms of the Tribunal’s decision, or their other duties and responsibilities.
The Adult, or a person who has a sufficient and genuine concern for the rights and interests of the Adult, may apply for a review of the appointment of the guardian. The Tribunal may dismiss the application unless there is some evidence of new and relevant information becoming available since the last hearing, or a relevant change in circumstances has occurred. For more information see QCAT Practice Direction 8 of 2010.
Removal of a guardian
Guardians can be removed when:
- the adult’s needs have not been met according to QCAT's decision;
- the guardian has neglected their duties or abused their decision making authority, either generally or for a specific matter;
- the guardian has otherwise contravened the Guardianship and Administration Act 2000;
- the need for a guardian no longer exists;
- the guardian is no longer competent to act as a decision maker;
- another person is more appropriate to be the adult’s guardian;
- they no longer wish to act.
Withdrawal of a guardian
If a guardian wishes to withdraw from their role, an application must be made to QCAT. The tribunal must then give the guardian permission to withdraw. Only when this permission is given does the appointment and therefore the responsibilities of being a guardian finish.
A guardian is not entitled to be remunerated for performing the role of guardian. However, they are entitled to be reimbursed by th adult for any reasonable expenses incurred in acting as guardian.
Related pages
Help and FAQs
As part of an independent tribunal, QCAT registry staff cannot provide legal advice.
Registry staff can explain and answer questions about how QCAT works and its processes.
Registry staff cannot help with:
- whether or not you should submit an applicationwhether your application is under the correct jurisdiction
- if you should lodge an appeal or a counter-application* recommending a specific lawyer to assist you
- how to word your application, supporting documents or what to say at a proceeding* contacting a QCAT member or adjudicator directly
- predicting likely outcomes of a case or appeal
- helping you to prepare your case
- advising what orders/decisions you should seek
- explaining what you should do to follow QCAT directions
- enforcing an order or decision of the tribunal
- advising exact timeframes for resolution of a matter – this depends on your individual matter.
QCAT staff cannot provide legal advice (see right hand side bar for more information).
All parties involved in a matter before QCAT must represent themselves. Whether you are represented or not you can still seek legal advice about your rights.
In some cases, a party is automatically able to be represented. QCAT will always agree to representation:
- for a child or a person with impaired capacity, or
- if the matter relates to disciplinary proceedings including a review of a disciplinary decision
- if the enabling Act related to the matter allows it.