Making decisions for others
How guardianship works
Queensland’s guardianship system assumes that a person has the capacity to make a decision until it can be shown that they do not.
Queensland’s guardianship system gives someone the legal authority to make decisions for an adult who doesn’t have the capacity to make such decisions.
Adults with impaired capacity have the right to:
- the greatest possible degree of autonomy in decision-making
- adequate and appropriate support for decision-making.
In Queensland, the guardianship system protects the rights and interests of adults who have an impaired capacity to make their own decisions.
This system comprises the following 5 entities:
- Queensland Civil and Administrative Tribunal (QCAT)—an independent tribunal that resolves disputes and makes decisions on matters for the first time (original decisions), and reviews decisions made by government agencies and statutory authorities.
- Office of the Public Guardian (OPG)—a body that works independently to protect the rights and interests of adults with impaired decision-making capacity.
- Public Trustee—a self-funding statutory authority that provides enduring powers of attorney, free wills, and investment, executor and financial administration services to Queenslanders.
- Public Advocate—performs systems advocacy to promote the rights, interests and independence of people with impaired decision-making capacity through changes to the law, policies, services and facilities that affect them.
- Community Visitor Program (administered by OPG)—a program that protects the rights of adults with impaired decision-making capacity by conducting site visits to inquire about and resolve complaints about the standard of services provided by government and non-government organisations.
What impaired capacity means
The law presumes that every adult has capacity to make their own decisions. You can’t assume someone has impaired capacity without evidence.
‘Capacity’ is a person’s ability to:
- understand the nature and effect of decisions
- freely and voluntarily make decisions
- communicate those decisions in some way.
When someone has impaired capacity, that doesn’t necessarily mean that they can’t make decisions. Many adults with impaired capacity can be supported to make decisions for themselves.
The law states that people with impaired capacity have a right to adequate and appropriate support in decision-making. Also, they may be able to make some types of decisions but not others. Capacity needs to be considered in the context of the decision to be made.
Guardianship for adults appointed by QCAT
The Queensland Civil and Administrative Tribunal (QCAT) can appoint a guardian on behalf of an adult with impaired decision-making capacity. The appointed guardian can make certain personal and health care decisions on the adult’s behalf, which protects their rights and interests.
Informal versus formal decision-makers
The role of a guardian appointed by QCAT is different from that of an informal decision-maker.
When appointed by QCAT, the guardian is legally responsible and accountable to QCAT for all their actions and decisions.
However, the law also recognises that, depending on the issue, decisions can be made informally without the need to appoint a guardian.
The QCAT website outlines the principles that a guardian must apply when making a decision for someone else, whether informally or as an appointed guardian.
What decisions can a QCAT appointed guardian make?
Generally, guardians can be authorised to make decisions on behalf of the adult, such as:
- where they live
- what support services they receive
- with whom they have contact or visits
- general health care matters
- the approval of chemical, physical or mechanical restraint in limited situations (Guardian for restrictive practices)
- restricted access to objects in limited situations (Guardian for restrictive practices)
- other day-to-day issues.
Guardians can’t make decisions about:
- financial or property matters unless they’ve also been appointed as the adult's administrator or attorney for financial matters under an enduring power of attorney (Alternative arrangements)
- special health care matters, including sterilisation or tissue donation
- special personal matters, including making or revoking a will, or consenting to marriage or relinquishing a child for adoption.
Who can apply to QCAT to appoint a guardian?
Family members, close friends, professionals or anyone with a genuine and continuing interest in the welfare of an adult with impaired decision-making capacity can apply for a guardian to be appointed.
Adults with impaired decision-making capacity can also apply on their own behalf.
Who can QCAT appoint as a guardian?
A person appointed as a guardian must:
- be over 18 years of age
- respect the decision-making principles in the Guardianship and Administration Act 2000
- have interests that are unlikely to conflict with those of the adult
- have an outlook, cultural background and method of communication that are compatible with those of the adult or anyone else appointed on the adult's behalf
- be available to act on behalf of the adult and be accessible to the adult
- be competent enough to carry out the functions and exercise the powers of a guardian
- be willing to act in line with the duties of a guardian.
A person may not be appointed as a guardian if they have:
- any criminal history
- previously been refused or removed as a guardian, attorney or other person making a decision for someone else.
A paid carer or health provider for an adult can’t be appointed as their guardian.
People with impaired capacity are vulnerable members of our society. If you think someone is in danger, report it to the police immediately on triple zero (000).
A person being harmed may not be able to report the abuse or be in a position to report it. When you think someone is being abused, report it immediately. You can contact the Office of Public Guardian (OPG) directly with your concerns.
You should also contact any agencies involved with the adult’s care so they can also take appropriate action.
The OPG can not investigate if:
- the abused person does not have impaired capacity
- a more appropriate body should investigate the allegation.
In these cases, the OPG will refer the matter to other agencies.
What the Office of the Public Guardian does
The Office of the Public Guardian works to protect the rights and interests of adults who have an impaired capacity to make their own decisions.
The head is appointed by the governor-in-council as the state’s official Public Guardian.
The Public Guardian works independently of government and non-government organisations to:
- make personal and health decisions for adults with impaired capacity if the OPG is their guardian or attorney
- investigate allegations of abuse, neglect or exploitation of adults with impaired capacity
- advocate and mediate for people with impaired capacity
- administer the Community Visitor Program
- provide advice and assistance to guardians
- educate and advise the community about guardianship. (If you’d like to request a presentation, complete the community education request form .
Find out what to do if you disagree with the OPG’s decisions.
What the Guardianship Information Service (GIS) does
The GIS can help you understand the processes and legal requirements involved in being a substitute decision-maker.
A substitute decision-maker may be an appointed guardian or administrator, an informal decision-maker, a statutory health attorney, or an attorney under an enduring power of attorney or advance health directive.
The GIS can not:
- tell you what decisions to make
- supervise or monitor the actions or decisions of guardians
- make decisions for an adult with impaired capacity
- act as a watchdog over formal or informal decision-makers.
Sometimes a person with impaired capacity may behave in a way that harms themselves or others. In limited circumstances, a guardian can be appointed to consent to the use of certain restrictive practices. The GIS can advise you about the guardian’s role in these situations.
Read more about restricted practices.