Statement from the Public Guardian
15 March 2022
Some people are unable to make some or all of their own decisions because of an accident, illness or injury — they may require decision-making support or a formal decision maker.
The Queensland Civil and Administrative Tribunal (QCAT) decides whether to appoint the Public Guardian or another person as a formal decision-maker for personal matters, based on an assessment of the person’s decision-making capacity, identification of a need for decisions to be made, identification of any risks to the person and whether there are less restrictive alternatives to support the person. If QCAT decides a person has impaired decision-making capacity and there is no one suitable in the person’s life to act as decision-maker, it may appoint the Public Guardian to act as a person’s guardian. Appointment of the Public Guardian is a last resort to ensure the person’s needs are met and their interests are adequately protected.
QCAT is also responsible for deciding when a guardianship order should be changed or revoked. Anyone can apply to QCAT for amendment or revocation of a guardianship order.
The Office of the Public Guardian (OPG) recognises that everyone has the right to make their own decisions and having a formal-decision maker can impact a person’s human rights. Where the Public Guardian is nominated as the proposed decision maker in a guardianship application to QCAT, OPG will advocate for the person’s decision-making support needs to be met in a less restrictive way. This may include having the person’s family or friends informally support the person to make decisions.
In 2020-21, OPG advocated for less restrictive ways to support the needs of people with impaired decision-making capacity in relation to over 800 guardianship applications before QCAT. OPG attended over 600 tribunal hearings where it was proposed that the Public Guardian be appointed as a person’s guardian. This resulted in the Public Guardian being formally appointed in only 58 percent of those hearings.
We are passionate about empowering adults under formal guardianship and advocating for their rights and interests. We have adopted a supported decision-making approach where guardians make every effort to understand the person’s views and wishes.
This approach is embedded in a framework that prioritises a least restrictive decision-making model within guardianship and recognises that just because a person cannot communicate verbally, it does not mean they cannot convey their views and wishes to others. In addition to the framework, guardianship decisions are always guided by the General Principles and Health Care Principles outlined in the Guardianship and Administration Act.
In 2020-21, OPG provided decision-making support to almost 3,800 Queenslanders. Almost all (98.5 percent) guardianship decisions made by OPG occurred in consultation with the person under guardianship and/or other relevant people in the person’s life. We also aim to ensure, wherever possible, that existing supportive relationships, whether with friends, family or service providers, are maintained and that if a person cannot truly communicate their views and wishes, then those of friends and family are also considered.
In making decisions about personal matters, such as where a person lives and what health and support services they receive, guardians must also consider a range of other factors in addition to the person’s views and wishes. These include:
- the financial means of the person
- whether the person requires, or has adequately funded disability supports
- advice of medical and allied health professionals about the support needs required to enable a person to live their best life, and
- whether proposed accommodation can properly meet the person’s needs.
We apply a rigorous process of gathering and considering all this information, which involves information from numerous stakeholders and can take time. We take this responsibility, and the responsibility to protect and promote the rights of persons with impaired decision-making capacity, very seriously. OPG appreciates that decisions made by OPG guardians can have a significant impact on the lives of clients; we recognise it can be challenging for families and support networks when a formal guardian outside of the family or support network has been appointed to make these decisions.
OPG is focussed on delivering high quality services to our clients and welcomes feedback on those services and how they were provided. We are committed to using feedback, such as the concerns raised in the ABC Four Corners program, to continuously improve our services to our clients and the Queensland community.
ENDS
- Office of the Public Guardian media contact: 1300 653 187 or comms@publicguardian.qld.gov.au.
- Statistics quoted in this statement were sourced from OPG’s Annual Report 2020-21. A snapshot of the Annual Report 2020-21 is also available online.