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Guardianship

1. What is a guardian for restrictive practices?
2. What is a guardian?
3. What powers do guardians have?
4. What responsibilities do guardians have?
5. What are the duties of a guardian?
6. What type of decisions can a guardian make?
7. What rights do guardians have to seek information on behalf of the adult?
8. Who is eligible to be appointed as a guardian?
9. Who can apply to the Tribunal for the appointment of a guardian?
10. What do I need to consider when making an application for guardianship?
11. What happens if the appointment is urgent?
12. How do I apply?
13. Can more than one guardian be appointed for the adult?
14. How does the Tribunal decide whether someone is suitable to be appointed as a guardian?
15. For how long can a guardian be appointed?
16. Is there anything a guardian cannot be given the authority to do?
17. Do guardians have the right to be paid?
18. What happens if there is a disagreement between guardians and/or administrators?
19. What happens if a guardian fails to act in accordance with the General Principles and/or Health Care Principle?
20. Can an appointment of a guardian be revoked automatically?
21. What are the grounds for the Tribunal to remove a guardian?

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A guardian for restrictive practices is someone who is appointed to make decisions about the use of chemical, physical or mechanical restraint or restricting access to an object, for an adult who has an intellectual or cognitive disability and who receives services provided or funded by Disability Services Queensland (DSQ).  Such an appointment may be made if the adult’s behaviour is causing or may cause harm to the adult or others.  In some cases where the adult is receiving respite and/or community access services only, a guardian may be appointed to approve containment and seclusion.

A guardian is a person legally appointed by the Tribunal to assist adults with impaired decision-making capacity make personal, health care, lifestyle and some legal decisions to ensure that the adult's needs are met and their interested are protected. 

A guardian is someone appointed by the Tribunal to make decisions about personal matters such as medical treatment, accommodation and support services to ensure that the adult’s needs are met and that their interests are protected.  Unless the Tribunal orders otherwise, a guardian can make decisions on behalf of the adult that the adult would have made on their own if they had the capacity to do so.

However, adults who can communicate their views and wishes should have those views and wishes taken into account in decisions about their personal, lifestyle and/or financial matters.   

The Tribunal may set limits on the types of decisions that a guardian can make make.  This means that sometimes guardians may only be appointed for specific decisions rather than for all decisions.

Guardians have the responsibility to abide by the General Principles as set out in the Act.  Guardians must also apply the health care principle whenever they are called upon to make a decision about health care.  Click here for further information about the General Principles.   

The Act sets out a number of duties for guardians.  They include the duty to:

• act honestly and with reasonable diligence
• act as required by the terms of the Tribunal’s order.

If there are two or more guardians they have a duty to:

• act jointly unless the Tribunal orders otherwise;  and
• consult with the other guardians or administrators regularly to ensure that the adult’s interests are not prejudiced by a breakdown of communication.

The Act assumes that every person can make decisions on their own.  Before the Tribunal can appoint a guardian, it must be satisfied that the adult cannot make decisions independently, there is a need for decisions to be made or that the adult is likely to do something that involves a risk to their health or welfare.

Generally, guardians are given the authority to make decisions on behalf of the adult about matters such as:

• where the adult lives
• what services the adult receives
• with whom the adult has contact or visits
• health care matters
• other day-to-day issues.

An adult’s capacity to make decisions may differ according to the nature and extent of any impairment, the type of decision to be made and the complexity of the decision.  This means that sometimes guardians may only be appointed to make specific decisions rather than for all decisions.  

Guardians with responsibility for a certain matter have a right to access all the information that the adult would have been entitled to when making a decision about the same matter.  It is part of the role of a guardian to seek the information necessary to make a sound decision.

Guardians are usually family members or close friends of the adult.  Guardians must be over 18 years of age but not a paid carer.  (A paid carer performs services for the adult’s care and receives remuneration other than a carer payment or benefit from the Commonwealth or State Government). 

Sometimes there is no one close to the adult who is able to accept the responsibility or there is dispute about who should act as guardian or concern about the suitability of a proposed guardian.  In these situations, the Tribunal may appoint the Adult Guardian to protect the rights and interests of an adult who has impaired decision-making capacity.

Anyone who has a genuine and continuing interest in the welfare of an adult with impaired decision-making capacity can apply to the Tribunal, such as, family members, close friends and professionals. Adults with impaired decision-making capacity can also apply to the Tribunal on their own behalf.

In your application, you must be able to demonstrate to the Tribunal that there is a specific need for an appointment and that the existing arrangements for decision making are inadequate.  You should:   

• notify the adult about what you intend to do
• contact the Tribunal Registry to obtain an application form, complete it and return it
• attach copies of a health professional’s report as evidence of the adult’s impaired decision-making capacity
• check whether the adult has given anyone enduring power of attorney for personal matters and, if so, list name/s and contact details
• give the names and contact details of anyone else involved in the life of the adult who has an interest in the application even if that interest is for a decision contrary to the one sought by you as the applicant
• if you are proposing another person as guardian you must ask the person you have nominated to sign the statutory declaration in the application form unless you are proposing the Adult Guardian.

If an appointment needs to be made urgently, the Tribunal can make an interim order without a hearing and then conduct a formal hearing at a later date.  Interim orders can be made for up to three months.  Interim orders are only made in exceptional circumstances.

Telephone or email (guardianship@justice.qld.gov.au) the Tribunal Registry and request that an application kit be mailed or faxed to you or download and print the application kit.  

Before you submit the application, you need to check whether the adult concerned has given anyone power under an enduring document such as an Enduring Power of Attorney or an Advance Health Directive and you should advise the person appointed by the adult under the enduring document about what you intend to do.

When the application form is completed, you need to lodge it with the Tribunal Registry via post or fax and attach supporting documents such as reports from health professionals and other information that demonstrates that there is a specific need for an appointment.

There is no cost associated with making an application. However, there are costs incurred by parties if they participate in hearings by telephone or videoconference and a Tribunal Officer can advise of the costs involved.

Yes.  The Tribunal has several options, including:

• appointing a single guardian to make decisions either on all matters or on a specified matter only (such as where the adult is to live and with whom);
• appointing more than one guardian and giving each guardian specific decision-making authority— that is, each guardian has the authority to make decisions on a different matter as specified in the Tribunal’s order; or
• appointing two or more guardians to act jointly (i.e., the co-appointees must make decisions together) or to act jointly and severally (i.e., two or more people appointed as guardian but each guardian can act separately on behalf of the adult). 

Before making the appointment, the Tribunal considers "appropriateness considerations" and competence as stated in the Act.  These considerations require that the person chosen as guardian be someone:

• who respects the decision-making principles specified in the Act which state that the adult must be given every opportunity to make decisions to the full extent of their capacity
• whose interests are unlikely to conflict with those of the adult
• whose outlook, cultural background and method of communication are compatible with those of the adult
• who is similarly compatible with anyone else appointed as guardian
• who is available to act as guardian and accessible to the adult
• who has the competence to carry out the functions and exercise the powers of a guardian
• who is willing to act in accordance with the duties of a guardian as set out in the Act.

The Tribunal will appoint a guardian for a period of time that it considers appropriate.  This can be up to five years. 

Guardians are not permitted to make decisions about financial or property matters unless they have also been appointed as administrator for the adult or as attorney for financial matters under an enduring power of attorney.  Guardians are also not permitted to make decisions about special health care matters (such as sterilisation or tissue donation) or special personal matters (such as making or revoking a will or consenting to marriage or relinquishing a child for adoption).

If appointed as a guardian, you are entitled to reimbursement from the adult for any reasonable expenses incurred while acting as a guardian.  However, you may not be paid for your services.  For example, if you drive an adult to the shops, you are entitled to reimbursement for your motor vehicle costs such as petrol but you cannot charge them for the time it takes you to drive them there.  

Disputes or disagreements between guardians, administrators or attorneys can be referred to the Office of the Adult Guardian and settled through mediation by the Adult Guardian.  If mediation fails to resolve a disagreement about a health matter, the Adult Guardian has the authority to make the decision but must advise the Tribunal of the details of the decision made.  If the dispute cannot be resolved by mediation, you can apply to the Tribunal. 

If someone suspects that a guardian is acting contrary to the general principles and/or health care principle they can contact the Office of the Adult Guardian and lodge a complaint.  The Adult Guardian has the power to investigate complaints about the actions of a guardian and the Tribunal can suspend for a three month period the operation of the powers of a guardian to allow an application to come before the Tribunal.  If a guardian is suspended the Adult Guardian is automatically appointed for the period of the suspension. 

Yes.  An appointment as a guardian will end if:

• the guardian becomes a paid carer or health provider for the adult
• the guardian was married to the adult when the appointment was made and the marriage is dissolved
• the guardian dies
• the adult dies.

Guardians can be removed when:

• the adult’s needs have not been met as required by the order
• the appointee has neglected their duties or abused their decision-making authority, either generally or in relation to a specific matter
• the appointee has otherwise contravened the Guardianship and Administration Act 2000
• a need for a guardian no longer exists
• the appointee is no longer competent to act as a decision maker
• another person is more appropriate for appointment
• they no longer wish to act.
  

Last updated 10/4/2007

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