Changes to guardianship laws and forms
On 30 November 2020, important changes to the law underpinning Queensland’s guardianship system came into effect.
The reforms include changes to guardianship laws and new:
- enduring power of attorney forms
- advance health directive forms
- other related forms and explanatory guides
- capacity assessment guidelines to assist people who undertake assessments of an adult’s capacity to make a decision under Queensland’s guardianship laws.
Learn more about each area of reform on this page:
- New forms and explanatory guides
- New capacity assessment guidelines
- Changes to the general principles and health care principles
- Clarity on applying the presumption of capacity
- Clarity about capacity to make an enduring document
- Conflict transactions
- Broader remedies for breaches
- Statutory exception to ademption
- Increases to other safeguards (including protection for whistleblowers, changes to the Public Guardian’s powers and for community visitors)
- Further eligibility requirements for attorneys
- Limit to number of joint attorneys
- Appointing administrators for missing adults
- Recognising interstate or NZ enduring powers of attorney
New enduring power of attorney and advance health directive forms have been made under the Powers of Attorney Act 1998 to replace previously existing forms that had been in place for more than 16 years.
The new forms:
- reflect legislative changes under the Amendment Act
- are simpler and more user friendly, following extensive consultation with a range of stakeholders.
Explanatory guides inform users how to complete these forms.
Only the new forms should now be used to make these documents.
Learn more about which of the forms to use.
New capacity assessment guidelines
New Queensland Capacity Assessment Guidelines 2020 (capacity guidelines) are also in effect as of 30 November 2020.
The capacity guidelines provide general information about capacity, capacity assessment and the legal tests of capacity in Queensland.
They are relevant for Queensland’s guardianship legislation (the Guardianship and Administration Act 2000 and Powers of Attorney Act 1998).
Changes to the general principles and health care principles
The general principles and the health care principles have been updated to be more consistent with human rights, particularly the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD).
They also put a greater focus on adults with impaired capacity participating in decision-making.
The changes clarify that any person or entity performing a function or exercising a power under the guardianship legislation must apply the general principles and health care principles—this includes:
- statutory health attorneys
- informal decision makers.
The Supreme Court and the Queensland Civil and Administrative Tribunal (QCAT) are also required to apply the general principles and health care principles for all guardianship matters, including when determining an adult’s capacity to make their own decisions.
Learn more about the general principles and health care principles.
Clarity on applying the presumption of capacity
The presumption that all adults have decision-making capacity until proven otherwise is fundamental to Queensland’s guardianship system.
The reforms do not change that presumption, but clarify how to apply it in certain circumstances, specifying that:
- every time QCAT or the Supreme Court must make a decision about an adult’s capacity, they must presume that the adult does have capacity for the matter until the contrary is proven
- if QCAT or the Supreme Court have appointed a guardian or administrator for an adult for a matter, that guardian or administrator does not need to presume the adult has capacity for the matter.
Clarity about capacity to make an enduring document
The reforms clarify the capacity required for an adult to make an enduring document (i.e. an advance health directive or an enduring power of attorney).
Because enduring documents provide significant powers to third parties to make decisions on the adult’s behalf, it is important that the adult understands the legal and practical effect of making these documents and does so freely—not due to pressure from others.
The reforms clarify that to make an enduring document the adult must both:
- understand the nature and effect of the document
- be capable of making it freely and voluntarily.
A conflict transaction happens when there is a conflict between an administrator’s or attorney’s duty to the principal and the administrator’s or attorney’s own interests. This can include the interests of the administrator’s or attorney’s friends, relatives and associates.
An administrator cannot enter into a conflict transaction unless a court or tribunal has authorised it. An attorney cannot enter into a conflict transaction unless the principal has authorised them to do so in the enduring power of attorney document, or if a court or tribunal has authorised it.
The reforms emphasise that attorneys and administrators should seek authorisation in advance before entering a conflict transaction.
While making it clear these transactions may continue to be authorised after the fact (i.e. retrospectively), the reforms clarify that until that happens, an administrator or attorney has acted against their duty not to enter into a conflict transaction.
Broader remedies for breaches
Where an attorney, administrator or guardian has failed to comply with their duties or obligations under guardianship legislation, the reforms clarify the current powers QCAT can exercise and provide additional powers to improve access to redress for victims of financial abuse.
The reforms clarify that QCAT can order both a current or a former attorney, administrator or guardian to pay compensation for a loss to the adult or the adult’s estate caused by their failure to comply with their duties.
The reforms also clarify that QCAT can order a current or a former attorney or administrator to file records and audited accounts of their dealings and transactions conducted on behalf of the adult.
They also provide the Supreme Court and QCAT with an additional power to order that an attorney, guardian or administrator (or former appointee) account for any profits accrued as a result of their failure to comply with their duties.
Statutory exception to ademption
The reforms introduce a legislative exception to ademption, where an attorney or administrator sells or disposes of property that is the subject of a specific gift in a deceased’s will. The exception ensures that the intentions reflected in a will are given effect.
Ademption occurs where the gifting of a specific item of property in a will fails because, before the death of the testator (i.e. the maker of the will), the item is sold or changes in form to the point that it can’t be regarded as the item described in the will—and it is no longer considered to form part of the deceased’s estate.
A common example is where a person gifts their house under their will, but before they die the house is sold to fund their entry into an aged care facility. Upon the person’s death, the gift is adeemed because the house no longer forms part of the testator’s estate—even if the proceeds of sale of the house can be traced.
Where a gift is adeemed, the testator’s wishes under their will can’t be followed. The proceeds from the sale form part of the residue of the estate and pass to the residuary beneficiaries, rather than to the intended beneficiary of the specific gift under the will.
The legislative exception means that ademption will not occur and the beneficiary will be entitled to the same interest in any surplus money or other property (the proceeds) arising from a sale, mortgage, charge or disposition or other dealing with the property by the administrator or attorney, as the beneficiary would have had in the property, had it not been sold or otherwise dealt with.
Increases to other safeguards
Protection of whistleblowers
The reforms broaden the protections available to whistleblowers who disclose confidential information about an adult with impaired capacity.
The broader protections ensure that a person is protected from liability not just for disclosures of information about an actual breach of the legislation, but for information the person honestly believes, on reasonable grounds, tends to show a breach of the legislation or would help in an assessment or investigation of a complaint about a breach.
They also ensure a person is protected if they believe, on reasonable grounds, the information tends to show an adult has been subject to abuse, neglect or exploitation, or would help in an investigation about this.
The reforms also create a new offence for reprisal actions taken against whistleblowers.
The Public Guardian and community visitors
The reforms provide a discretion to the Public Guardian to investigate a complaint that an adult was subject to abuse, neglect or exploitation even after the death of the adult.
The people who can request a visit to be undertaken by a community visitor has been expanded to include a consumer’s guardian, administrator, attorney, or statutory health attorney advocate, or an interested person.
The Public Guardian has been given discretion to provide a copy of a community visitor’s report about a visit to a visitable site to a broader range of people with an interest in the consumer.
However, the reforms also allow the Public Guardian to limit the information provided to the people entitled to a copy of the report (to avoid disclosing the adult’s confidential, personal and financial information).
Other safeguards for adults with impaired capacity
To further enhance safeguards for adults with impaired capacity, the reforms also:
- recognise the role that support plays in determining an adult’s capacity
- require QCAT, to the greatest extent practicable, to seek and take into account the views, wishes and preferences expressed or demonstrated by the adult and any views of the adult’s support network when carrying out functions or powers under guardianship legislation
- focus the definition of ‘interested person’ on a person who has a sufficient and genuine interest in promoting and safeguarding a person’s rights and interests. This affects the types of people who can initiate certain processes for an adult or receive information about them under guardianship legislation
- clarify that QCAT may remove the Public Guardian as an adult’s guardian if there is another appropriate person available to appoint (e.g. a member of the adult’s support network).
Eligibility requirements for attorneys
The reforms add new eligibility requirements for attorneys appointed under an enduring power of attorney or advance health directive. These changes affect who can be appointed as an attorney.
In addition to the previously existing requirements, an eligible attorney under an enduring power of attorney:
- must have capacity for a matter
- must not have been a paid carer for the principal in the previous 3 years before their appointment.
A paid carer is someone paid a fee or wage to care for a principal, but not someone receiving a carer’s pension or benefit.
In addition to the previously existing requirements, an eligible attorney under an advance health directive:
- must have capacity for health matters
- must not be a service provider for a residential service where the principal resides.
Limit to number of joint attorneys
The reforms limit the number of joint attorneys that can be appointed under an enduring power of attorney for a matter to 4.
Joint attorneys must agree on all decisions under the enduring power of attorney. The change means a principal can only appoint a maximum of 4 people who make decisions in this way.
There is no limit on the number of attorneys appointed otherwise.
This limit does not apply for attorneys appointed for health matters under an advance health directive.
Appointing administrators for missing adults
QCAT is empowered to appoint an administrator for a missing person where QCAT is satisfied that both:
- the person is missing
- their financial interests would be adversely affected if an administrator is not appointed.
Appointing an administrator for a missing person will allow pressing issues relating to the person’s estate (e.g. where action is required to preserve the missing person’s assets) to be dealt with immediately.
The changes aim to overcome some of the difficulties families and friends face when their loved one is missing and there is no evidence that the person has died.
The appointment of an administrator for a missing person is automatically revoked (cancelled) if either:
- a coroner makes a finding under the Coroner’s Act 2003 that the adult has died
- the Supreme Court makes a declaration of death or grants a person leave to swear the death of the adult
- the adult’s death is registered under the Births, Deaths and Marriages Registration Act 2003.
QCAT must also revoke the appointment if satisfied that the adult is alive—either based on application by the administrator or other interested person, or on QCAT’s own initiative.
Recognising interstate or NZ enduring documents
In addition to recognising interstate enduring powers of attorney, New Zealand enduring powers of attorney may also be recognised as valid under Queensland law (to the extent the powers they give could have been validly given by an enduring power of attorney made in Queensland).
- Guardianship and Administration and Other Legislation Amendment Act 2019
- Explanatory notes—the Guardianship and Administration and Other Legislation Amendment Bill 2018