GAA – Capacity

If you are unfamiliar with guardianship and administration law, you may want to first read GAA – Guardianship and Administration toolkit.

The power of the Queensland Civil and Administrative Tribunal (QCAT) revolves around whether the Adult has “impaired capacity”. If an Adult has capacity, then the Tribunal lacks jurisdiction to make any orders with respect to that person.

It is therefore important that the test for capacity is understood and correctly applied.


Meaning of impaired capacity

Schedule 4 of the Guardianship and Administration Act 2000 (Qld) (GAA Act) provides:

  • Impaired capacity, for a person for a matter, means the person does not have capacity for the matter.
  • Capacityfor a person for a matter, means that the person is capable of:
    • Understanding the nature and effect of decisions about the matter; and
    • Freely and voluntarily making decisions about the matter; and
    • Communicating the decisions in some way.

Application of test

Identify the “matter” for which a determination about capacity is required

In most cases, an application to the Tribunal will be for a particular issue, for example, whether the applicant has capacity to sell her house.

It is only necessary for the Tribunal to look at whether the Adult has capacity for the particular issue in question and not whether the Adult has capacity for all matters.

It is therefore important to identify the “matter” which is the subject of contention.

Starting with general principle 1, does the person have capacity for the matter?

General principle 1 presumes that the Adult has capacity. There must be sufficient evidence of incapacity to rebut this presumption.

In deciding whether an individual is capable of communicating their decision in some form, the tribunal must investigate the use of all reasonable methods of communication, including for example symbol boards or signing (s146(3) GAA Act).

Evidence required

It may be necessary to obtain medical reports from the Adult’s general practitioner or treating specialist. Other health and allied health professionals who may assist in this process can include geriatricians, rehabilitation specialists, neurologists, psychiatrists, neuropsychologists and occupational therapists.

It is important to note however, that the ultimate test of capacity is not scientific, but whether the Adult satisfies the above criteria for capacity in Schedule 4 GAA Act.

An example of how the tribunal weighs evidence as to capacity for financial decision making, including from conflicting medical witnesses, the Adult and lay witnesses, may be found in the decision WJR v Public Trustee of Queensland [2010] QCATA 39.

Authority for the tribunal to make a declaration about capacity

The Tribunal may make a declaration about the capacity of an Adult, a guardian, an administrator or an attorney (such as an attorney under a power of attorney, attorney under an advance health directive or a statutory health attorney) for a matter (s146(1) GAA Act).

When will the Tribunal make a declaration about capacity?

A tribunal may make a declaration about capacity:

  • on its own initiative, or
  • on the application of the individual (that is, the person whose capacity is at issue), or
  • on the application of another interested person (s146(2) GAA Act).

An “interested person” means “a person who has a sufficient and continuing interest in the other person”: Sch 4 GAA Act.

If necessary, the Tribunal may decide whether a person is an interested person for another person: s126(1) GAA Act.

Effect of declaration about capacity

If an Adult is declared as having capacity for a matter, then the Tribunal will not be able to appoint a guardian or administrator for the Adult (s12, GAA Act) and must revoke any existing appointment (s31(2) GAA Act).

If a person without capacity enters into a contract, then they may be able to argue that the contract is void. They must prove that at the time of making the contract they were incapable of understanding it and the other party was aware or should have been aware of this. This is a principle of common law, subject to any legislative provision to the contrary.

In Queensland, this principle has been legislated in relation to land agreements under s83 of the Public Trustee Act 1978 (Qld). An Adult without capacity cannot deal with land and any such agreement is voidable. However, the agreement will stand if the other party can prove that they acted in good faith for adequate consideration and without knowledge of the Adult’s incapacity.

If the Tribunal makes a declaration about the capacity of an Adult to enter into a contract, then that declaration may be used as evidence of the person’s capacity in any subsequent proceedings in which the validity of the contract is in dispute (s147 GAA Act).

Even if a person cannot argue legal incapacity, for example, because their capacity fluctuates or because they have been declared without capacity for some matters only, they may still be able to have the contract set aside if there has been unconscionable conduct or undue influence by the other party.

For more information QCAT keeps a list of decided cases, organised by issue. Please see here.


The information in this resource is for general information purposes only and should not be relied on as legal advice. If you need legal advice, please contact LawRight or another lawyer. LawRight can only give advice to people who are eligible for our services.