“QCAT” – What is it and how can it help adults with impaired capacity

QCAT

Prue Poole, Principal at McInnes Wilson Lawyers outlines “QCAT” and how it can help those who have impaired capacity.

Some people will have heard of “QCAT” but not many really know or understand what it does and how it can help support adults who have impaired capacity or those who may be concerned for the welfare of those with impaired capacity.

People may know that it’s a Tribunal not a Court and that it can resolve lots of disputes, but this only touches on its many functions.

Having a proper understanding of:

  • the functions of QCAT;
  • what its powers are; and
  • how you can refer a matter there

can really assist any professional who regularly sees or supports the elderly or other members of society who may now or in the future suffer from impaired mental capacity.

In this article, we highlight the above issues to try and broaden your general knowledge of this useful government entity.

  1. What is QCAT?

“QCAT” stands for the Queensland Civil and Administrative Tribunal (QCAT).  There is a similar entity in each Australian jurisdiction.

QCAT is an independent accessible tribunal that resolves disputes on a range of matters.  Its purpose is to provide a quick, inexpensive avenue to resolve disputes between parties and make decisions.

QCAT has exclusive jurisdiction for the appointment of guardians and administrators for adults who lack capacity. 

It is important to remember that at law every person is presumed to be able to make their own decisions[1]. Before QCAT can exercise any of its functions (referred to below), it needs to be satisfied that:

  • The adult has impaired decision-making capacity;
  • There is a need for a decision; and
  • A decision maker is needed to ensure that the adult’s needs are met, and their interests are protected.

Other areas in which QCAT has jurisdiction include anti-discrimination, building disputes, consumer disputes, minor civil disputes, retail shop leasing and residential tenancy disputes.  These matters are outside the scope of this article however more information can be found on the QCAT website:  www.qcat.gld.gov.au

 

  1. What are the functions of QCAT?

QCAT’s functions within the jurisdiction of administration and guardianship for adults who lack capacity include:

  • Making declarations about an adult’s decision-making capacity for some or all matters;
  • Appointing guardians and/or administrators;
  • Reviewing the appointment of guardians and/or administrators, including suspending the appointment where necessary;
  • Considering applications for a declaration, order, direction, recommendation or advice in relation to the Guardianship and Administration Act 2000 (Qld) (Act) or the Powers of Attorney Act 1998 (Qld); and
  • Ratifying an exercise of power or approving a proposed exercise of a power.

If the jurisdictional questions referred to above are satisfied, then QCAT may appoint an “Administrator” to make financial decisions for a person with impaired capacity, and/or a “Guardian” to make personal/health decisions for the subject person.  These concepts are explained further below.

In practical terms, there are two common scenarios in which it may be necessary to apply to QCAT for the appointment or alteration of substitute decision makers for an adult with impaired capacity.   These are:

  • where a person has not appointed their own substitute decision makers by putting in place an enduring power of attorney (EPA) and they subsequently lose capacity to do so; and
  • where a person has put in place an EPA but since losing capacity, those arrangements become inappropriate and the adult, due to the lack of capacity, cannot update or amend their EPA to put in place more appropriate arrangements.

 

  1. Who can apply to QCAT?

Any ‘interested person’ can apply to QCAT for an administration and/or guardianship order which will appoint a substitute decision maker for the adult.  The adult themselves can even apply[2].    

An ‘interested person’ is someone who has a sufficient and continuing interest in the other person.[3] 

Where there are no close family or friends, a service provider with a genuine and continuing interest in the welfare of the adult with impaired capacity would satisfy the ‘interested person’ test.

There could be circumstances where a medical professional may be the appropriate person to make an application to QCAT or at least suggest to family members that this occur.  Therefore, being aware of QCAT and how it can assist is another avenue by which professionals can help support persons with declining capacity.

 

  1. Who is an administrator?

Administrator’s make decisions about an adult’s ‘financial matters’.  An administrator appointed by QCAT is similar to an attorney appointed for financial matters under an EPA. 

Financial matters which an administrator appointed by QCAT may be involved in include:

  • managing bank accounts and investments;
  • paying expenses;
  • recovering debts;
  • entering into or completing contracts; and/or
  • legal matters relating to the adult’s financial or property matters.

An individual (often a family member) may be appointed as an administrator.  However, they must be:

  • at least 18 years old;
  • not a paid carer or healthcare provider for the adult;
  • not bankrupt or taking advantage of the laws of bankruptcy as a debtor (in any jurisdiction); and
  • Must be appropriate having regard to the appropriateness considerations set out in the Act.[1]

If there is not an appropriate individual to appoint as administrator, then the Public Trustee of Queensland or a private trustee company may be appointed in this capacity.

 

  1. Who is a guardian?

Guardian’s make decisions about ‘personal matters’.  They are similar in function to an attorney appointed for health and personal matters under an EPA.  However, a guardian formally appointed by QCAT is accountable to QCAT for their decisions and actions.

Personal matters which a guardian may undertake for an adult with impaired capacity include:

  • Care;
  • Healthcare;
  • Welfare;
  • Where they live;
  • Who they live with; and/or
  • Day to day decisions such as dress and diet.

A guardian cannot make financial decisions unless they are also appointed as the administrator.  They also cannot make decisions about “special health care or personal matters” which include sterilisation, tissue donation, making a will, marriage or adoption.

An individual (again often a family member) may be appointed as a guardian.  However, they must be:

  • At least 18 years old; and
  • Appropriate having regard to the appropriateness considerations in the Act.[2]

If there is no one else appropriate to be appointed, the Office of the Public Guardian may be appointed.

 

  1. The General Principles for administrators and guardians to follow

The Guardianship and Administration Act 2000 (Qld) and the Power of Attorney Act 1998 (Qld) (the legislation) seek to balance the rights of an adult to maintain an independent role in decision-making with their right to adequate and appropriate decision-making support. 

To achieve this balance, administrators are required to apply the stated general principles.  These include:

  • presumption of capacity;
  • human rights: regardless of decision-making capacity, decision-makers must recognise the importance of encouraging the adult to exercise their rights and that everyone has the same basic rights;
  • individual value: each person is valued as an individual and their human worth and dignity is respected;
  • valued social role: an adult’s right to be a valued member of society is recognised, as is the importance of encouraging and supporting them in social roles such as home owner, bank customer, investor, shopper, worker or volunteer;
  • participation in community life: the adult should be encouraged and supported to live life in the general community and to take part in general community activities;
  • encouraging self-reliance: to achieve the adult’s maximum physical, social, emotional and intellectual potential and to become as self-reliant as possible;
  • least restrictive option: anyone performing a function or exercising a power under the legislation must apply the least restrictive option that is consistent with the adult’s proper care and protection.
  • maintenance of existing supportive relationships: decision-makers must recognise the importance of maintaining the adult’s existing supportive relationships;
  • maintenance of environment and values: decision-makers must recognise the importance of maintaining the adult’s cultural and linguistic environment including any religious beliefs and lifestyle choices;
  • appropriate assistance: the assistance given to the adult in a particular situation must meet their current needs and be adapted to their individual characteristics; and
  • confidentiality: decision-makers must recognise the adult’s right to confidentiality about personal information.

Guardians also have detailed Health Care Principles which they must observe.  In summary and echoing those above for administrators, guardians need to exercise their powers in a way that is least restrictive to the adult’s rights, appropriate to maintain or promote the adult’s best interests and in all the circumstances be in the adult’s best interests.

 

  1. Why this information is so important

Unfortunately, in society the mistreatment (sometimes even unintentionally) of those with impaired capacity appears to be increasing.  It is important to care for those who cannot care for themselves. QCAT is a forum within which adults with impaired capacity can be supported and if necessary protected from such mistreatment.

Medical practitioners are often at the forefront of seeing the decline of a patient or even witnessing mistreatment or declining care of the vulnerable.  It may of assistance to such persons for you to be able to have a sensible discussion either with the patient or family member about what function QCAT can fulfil.

The above information confirms that a medical practitioner can be an appropriate person to bring an important matter to QCAT’s attention so that appropriate measures can be put in place.  It is important to understand further the responsibility and obligations placed on administrators or guardians.  This understanding may indicate if those standards are not being met and whether a vulnerable person may be at risk.

The McInnes Wilson Lawyers wills & estates team regularly conducts matters in QCAT both seeking the appointment of administrators and/or guardians and seeking removal for inappropriate action.  If you or someone you know requires any assistance in this regard, further information can be obtained by contacting Prue Poole, Principal on (07) 3014 6514.

DISCLAIMER: McInnes Wilson Lawyers Pty Ltd ABN 30 137 213 015 | The information provided in this article is of a general nature and does not take into account individual objectives, legal and financial situation or need.

This article is intended to provide general information only. It is not intended to be formal advice and should not be relied upon as such. Formal advice should be sought for any circumstances pertaining to the reader of this disclaimer. The author disclaims liability for any loss incurred by any person who acts in reliance upon the information contained in this article.

Should the contents of this article be posted on any other publication then the reader of this disclaimer acknowledges that the author has no control over its nature, content and accuracy Any references to the author do not imply a recommendation or endorsement of the views in those other publications. 

 

 

[1] Guardianship and Administration Act 2000 (Qld)

[2] Ibid, s 12(3)

[3] Ibid, Sch 4

[1] Guardianship and Administration Act 2000 (Qld), s 15(1)

[2] Ibid, s 15(1)

The Private Practice Magazine

This article featured in our
Summer 2018 Edition



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