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QCAT – dealing with adults with impaired capacity

QCAT – dealing with adults with impaired capacity. Clare Endicott Senior Member 8 February 2014. What does QCAT decide. makes declarations about the decision-making capacity of adults, guardians, administrators and attorneys appoints guardians and administrators

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QCAT – dealing with adults with impaired capacity

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  1. QCAT – dealing with adults with impaired capacity Clare Endicott Senior Member 8 February 2014

  2. What does QCAT decide • makes declarations about the decision-making capacity of adults, guardians, administrators and attorneys • appoints guardians and administrators • provides directions and advice to guardians and administrators • reviews appointments • decisions related to enduring powers of attorney and advance health directives • gives consent for special health care matters and restrictive practices.

  3. What QCAT considers When making an appointment of a substitute decision maker the tribunal gives consideration to: • the capacity of the adult • is there a need, and if so who is the most appropriate appointee? • is this least restrictive option?

  4. Sometimes, an appointment is not necessary When family, friends and support network help the adult make decisions. Act designed to support the right of an adult to make decisions. QCAT will only appoint a guardian or administrator if there is no other way to ensure that the adult’s interests are protected and that his/her needs are met.

  5. Guardianship explained A guardian is a person who is appointed to make personal and lifestyle decisions for an adult with impaired capacity for decision making. Who can be a guardian • family member • friend • the Adult Guardian • not a paid carer or treating health professional for the adult

  6. Administration explained An administrator is appointed to make financial and legal decisions for an adult with impaired capacity for decision making. Who can be an administrator • family member or friend • an appropriate professional • Public Trustee of Queensland • a private trustee company • not a bankrupt, paid carer or treating health professional

  7. Standing as applicant Section 115(2) GAA2000 applications by: • The adult • Another interested person Definition of interested person: person with a sufficient and continuing interest in the adult • Interpreted to mean interest in the adult’s welfare (emotional, financial or otherwise)

  8. Role of QCAT • Putting into place a decision making regime for an adult with impaired capacity • Does not make health care (except special health care), accommodation or financial decisions for adults • Can give directions to appointed decision makers but does so rarely

  9. Guardian V litigation guardian • QCAT has no role in appointing litigation guardians • Can appoint a guardian to make decisions about legal matters for an adult • Can appoint an administrator to make decisions about legal matters involving financial issues for an adult • See DMK [2013] QCAT 460

  10. Legal matters • Defined in Schedule 2, section 18 • Inclusive, not exhaustive, definition • Can decide use of legal services to obtain advice • Can decide use of legal services to undertake a transaction • Can decide use of legal services to bring or defend a proceeding • Can decide to bring or defend a proceeding and settle a claim

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