Guardianship and Administration Matters
A loved one has impaired capacity and did not make an Enduring Power of Attorney. Can I make personal or financial decisions on their behalf?
Unfortunately, life can take unexpected turns at any moment, and we are not always prepared for what is to come. A person can lose their capacity suddenly, through accident or illness, leaving them unable to formally decide on who can make personal or financial decisions on their behalf. If you are worried that an adult person in your life has lost their capacity to make important decisions, and the person does not have a formal legal instrument in place, such as an Enduring Power of Attorney (EPOA) or Advance Health Directive, then there are options available to you under Queensland’s Guardianship and Administration laws.
What is capacity?
Before we take a look at the avenues that you can take to protect a person’s personal or financial interests, it is important to understand the legal definition of capacity and its complexities.
Capacity means that a person is capable of:
- understanding the nature and effect of their decisions
- freely and voluntarily making decisions and
- communicating their decisions in some way.
For example, for someone to have full capacity to consent to surgery, they would need to show that they fully understand the nature and effect of this surgery. They would be able to freely and voluntary decide to have the surgery and be able to communicate this decision in some way, whether verbally, in writing, or through symbol boards.
All three components of this test are therefore considered when deciding whether a person is deemed to have impaired capacity for decision making.
Anyone can carry out a capacity assessment, however this opinion can be reviewed or challenged. It should be noted that capacity is a highly complex legal and medical area, and a capacity examination by a qualified medical practitioner is often a helpful and important tool for obtaining an informed opinion on capacity. If there is a dispute, the Queensland Civil and Administrative Tribunal (QCAT) and the Supreme Court of Queensland, can make formal decisions about an adult’s capacity.
Important points to note are:
- All adults are presumed to have capacity for decision making until it is proven otherwise. This presumption is not altered simply because a person is affected by disability, mental illness or age.
- Poor, risky or immoral decision making by a person does not immediately mean they have lost capacity.
- A person can have capacity for decision making for some matters, but not for others. Capacity is specific to the type of decision being made at a particular point in time.
- Capacity can change or fluctuate over time. A person can permanently or temporarily loose capacity.
- A person can be supported by another person to make a decision.
There is impaired capacity and no EPOA or Advance Health Directive in place, what should I do?
There are multiple substitute decision making arrangements that could arise in this instance. These arrangements are specifically dependent upon the type of decision the person is looking to make (health, personal, financial). It is important to obtain specific legal advice as to what avenue is the most appropriate based on your situation and your relationship with the person.
The Guardianship and Administration Act 2000 (Qld) (‘the Act’) allows for a guardian to be appointed for personal and lifestyle matters (including health), and an administrator to be appointed for financial matters. Under the Act and in accordance with the terms of appointment, a guardian or administrator is authorised to do anything in relation to a personal matter (guardian) or financial matter (administrator), that the adult with impaired capacity could have done if the adult had capacity for the matter. These powers must be exercised honestly and with reasonable diligence to protect the adult’s interests. This appointment is made by QCAT or the Supreme Court.
If you are seeking to make an application to be appointed as a Guardian or Administrator you must demonstrate the requirements for an appointment order.
Under section 12(1) of the Act, appointment may be ordered if the tribunal is satisfied that:
a) the adult has impaired capacity for the matter; and
b) there is a need for a decision in relation to the matter or the adult is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the adult’s health, welfare or property; and
(c) without an appointment—
(i) the adult’s needs will not be adequately met; or
(ii) the adult’s interests will not be adequately protected.
Under section 12(3) an appointment order may be made on the tribunal’s own initiative, or on the application of the adult, the public guardian or an interested person.
This article is a guide and should not be considered as legal advice. The application process for becoming an appointed Guardian or Administrator under the Act can be a challenging and legally complex process. If you require advice and assistance with making an application to QCAT, or are seeking advice as to what substitute decision making arrangements are available to you, contact the experienced litigation team at Potts Lawyers.