What is a guardian
What is the Queensland Civil and Administrative Tribunal’s role in guardianship?
Under Queensland’s Guardianship and Administration Act 2000, the Queensland Civil and Administrative Tribunal (QCAT) is the legal authority responsible for appointing guardians and administrators for adults. This happens when QCAT determines that you have impaired decision-making ability (also known as capacity) and cannot make some or all decisions for yourself.
What is the role of a guardian?
A guardian is a person legally appointed by QCAT to make personal decisions on your behalf if you’re unable to make decisions for yourself. These decisions may include:
- Where you live
- Your health care
- The services you receive.
QCAT may appoint a guardian if:
- A decision needs to be made
- They determine you have impaired ability to make the decision, even with support
- Your health, welfare or property is at risk without a decision maker
- Your needs will not be adequately met, or interests will not be adequately protected.
However, guardians cannot make decisions about:
- Financial or property matters: these are handled by an administrator if appointed
- Special health care matters, such as sterilisation procedures, termination of pregnancy, or tissue donation
- Special personal matters, including making or revoking a will, consenting to marriage, or relinquishing a child for adoption
- Personal matters not listed on the QCAT order.
For more information, you can refer to Section 12 of the Guardianship and Administration Act 2000, which outlines the role and limitations of guardians.
Do I need a guardian?
You may not need a guardian if you can make decisions with support from someone else or if there’s already someone who can make decisions for you. For example, a statutory health attorney can make health care decisions on your behalf if you’re unable to.
However, you may require a guardian in situations where formal representation is needed, such as:
- Moving into a new home, aged care, or supported accommodation
- Organising access to NDIS services and other support services
- Assisting with legal matters (not related to finances or property).
If you appointed an attorney under an Enduring Power of Attorney (EPOA) or an Advance Health Directive (AHD) while you had decision-making ability, that person will act as your formal decision-maker. If you don’t have an attorney and your decision-making ability is impaired, QCAT can appoint a guardian to make certain personal decisions for you.
QCAT will specify:
- The types of decisions your guardian can make (e.g., health care, accommodation, or services)
- How long they can act in this role.
To reduce the need for a guardian, you can complete an Advance Health Directive (AHD). This document allows you to:
- Outline your health care preferences for future medical treatment
- Appoint an Enduring Power of Attorney (EPOA) for health matters within the same document.
Who can be my guardian?
QCAT decides who is the most suitable person to be your guardian. This could be:
- A family member
- A close friend
- An unpaid carer (including someone receiving a carer’s pension but not a service provider)
- Another person with a genuine interest in your welfare
- The public guardian.
When making this decision, QCAT considers factors such as:
- Whether you and the person are compatible
- The likelihood of conflict between your interests and theirs
- Their availability to support you.
QCAT can appoint one or more guardians. If multiple guardians are appointed, they’re usually required to act jointly and must perform their role in a united way.
Your guardians must regularly consult with each other to ensure your interests aren’t harmed by miscommunication.
We may only be appointed if QCAT determines there is no other person appropriate for the appointment.
How is a guardian appointed?
Anyone with a personal or professional interest in your life, such as a family member or hospital social worker can apply to QCAT to appoint a guardian for you. You can also apply to QCAT if you need a formal decision-maker to help you with decisions.
An application should only be made if:
- A personal or health care decision is required
- You cannot make the decision, even with the support of others
- Your needs will go unmet, or your interests will be unprotected without a guardian.
For example, a guardian may be needed if there's:
- No one supporting you
- Significant disagreement about what decision should be made.
QCAT will notify you know about the application and give you an opportunity to share your views.
For more information, visit QCAT’s website.
What happens at a QCAT hearing?
Once an application is received, QCAT will schedule a hearing. The person who made the application must attend, and you are encouraged to attend as well, if possible.
At the hearing, QCAT will:
- Present the relevant information they have
- Ask questions to gather more details about you, your circumstances, and the decisions that need to be made.
At the end of the hearing, QCAT will decide whether a guardian needs to be appointed for you.
If there is an immediate risk of harm to your health, safety, or property, QCAT can appoint a guardian without holding a hearing or contacting you first. In these cases, a hearing will be held within three months to review the decision.
What is a written guardianship order?
An order is a formal decision made QCAT that legally appoints a guardian or administrator to make specific decisions on behalf of you if you are unable to make them yourself due to impaired decision-making ability.
If QCAT appoints a guardian, they’ll issue a written guardianship order that outlines:
- Who has been appointed as your guardian
- The types of decisions your guardian can make (e.g., your health care or accommodation)
- Tow long the appointment will last —temporary or ongoing
- Any conditions or limits on the decisions that they can make for you.
Your guardian can only make decisions specified in QCAT’s order.
These orders are made under the Guardianship and Administration Act 2000 to ensure your rights, interests and wellbeing are protected.
For more information about the appointment of a guardian, visit QCAT’s website.
How long will I have a guardian?
QCAT determines how long a guardian is appointed. Typically, appointments are reviewed at least every five years, but they may be reviewed sooner depending on:
- The terms of the order
- Whether your impairment is permanent
- Changes in your circumstances
- Whether restrictive practices apply.
Guardians can be reappointed by QCAT, or they can apply to end their appointment.
When is the public guardian appointed?
QCAT will only appoint us, if there's:
- No one suitable and willing to act as your guardian
- Serious disagreement among your family or friends about who should be your guardian.
As your guardian, we’ll only make decisions we’ve been appointed for and only when a decision needs to be made.
Your family, friends, carers and services providers will continue to provide day-to-day support. We don’t take on the roles and responsibilities of other agencies and service providers.
How does my guardian make their decisions?
Under Queensland law, guardians (private or public) are required to follow the General Principles and Health Care Principles that protect your rights, respects your views, and reflect your preferences. These include:
- Considering your preferences: guardians must take your rights, wishes, and preferences into account and must make decisions that align with them as much as possible.
- Recognising your support network: guardians must seek input from your existing support network to understand your views, wishes, and preferences or what your circumstances might have been.
- Using substituted judgement: if your preferences are unknown, we must consider:
- Your past views, values and life experiences
- Any decisions based on what you would likely have wanted in similar circumstances.
Our goal is to make decisions that reflect your will and preferences, while balancing your safety and wellbeing.
What are the responsibilities of my guardian?
Your guardian has legal duties, including:
- Applying the general and health care principles: guardians must follow these principles when making decisions
- Following the appointment order: guardians must act within the terms and conditions set by QCAT. If there are multiple guardians, they must act unanimously
- Acting honestly and diligently: guardians must prioritise your interests and act with care and attention
- Consulting with other decision-makers: guardians must regularly communicate with other guardians or administrators to avoid conflicts
- Protecting your privacy: guardians must keep your sensitive information confidential unless disclosure is necessary for their role.
For more details, read about the obligations of a guardian.
For more information refer to guidance for private guardians or if we make decisions for you .
What happens if my guardian is not acting properly?
If your guardian isn’t fulfilling their duties or is abusing their powers, you (or someone on your behalf) can:
- Seek legal advice
- Apply to QCAT to have the guardian removed or the order revoked
- Request an investigation from us.
Can I have my QCAT order reviewed?
Yes. If you no longer need a guardian or want to change your guardian, you (or someone on your behalf) can apply to QCAT to review your guardianship order. You can also apply to have the order revoked or removed at any time. QCAT will decide if the order is revoked.