GAA – Functions and powers of the Tribunal

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

This fact sheet summarises the functions and powers of the Queensland Civil and Administrative Tribunal (QCAT) in exercising jurisdiction under the Guardianship and Administration Act 2000 (Qld) (GAA Act).

 

Jurisdiction of the tribunal

QCAT has exclusive jurisdiction for the appointment of guardians and administrators for adults with impaired capacity. This is subject to section 245 of the GAA Act where the District or Supreme Court appoints an administrator pursuant to a settlement involving a person with impaired capacity: s82(1) GAA Act.

In addition, QCAT has concurrent jurisdiction with the Supreme Court for enduring documents and attorneys under enduring documents: s82(2) GAA 2000.

The powers of QCAT are generally limited to Adults with impaired capacity, although there are some provisions in relation to people under the age of 18, namely, the advance appointment of guardians and administrators (s13 and 13A GAA Act) and sterilisation of a child with an impairment (defined as “cognitive, intellectual, neurological or psychiatric impairment”) (Chapter 5A GAA Act).

Functions of the tribunal

QCAT has the functions given to it by the Guardianship and Administration Act 2000 (Qld): s81 GAA Act. These include:

• making declarations about the capacity of an Adult (or a guardian, administrator or attorney) for a matter under s146 GAA Act;
• appointing a guardian and or administrator for an Adult under s12 GAA Act;
• reviewing the appointment of a guardian or administrator either upon application or on its own initiative under ss28 and 29 GAA Act;
• consider applications for a declaration, order, direction, recommendation or advice in relation to an Adult about something in, or related to, the GAA Act or the Powers of Attorney Act 1998: s115 GAA Act and s60 Queensland Civil and Administrative Tribunal Act 2009 (Qld), for example:

• an order or advice in relation to a guardian, administrator, attorney (that is, an attorney appointed under an enduring document or a statutory health attorney) or an enduring document;
• a declaration about the validity or scope of an Enduring Power of Attorney;

• ratifying an exercise of power, or approving a proposed exercise of power, for a matter by an informal decision maker for an adult with impaired capacity for the matter under s154 GAA Act; and
• suspending a guardianship or administration order if the Tribunal suspects that the appointed person is not competent under s155 GAA Act.

QCAT also has the following special functions:

• making an advance appointment of a guardian or administrator for a person who is at least 17 1/2 years old but not yet 18 years old under ss 13 and 13A GAA Act;
• consenting to the withholding or withdrawal of life-sustaining measures for an Adult with impaired capacity for the health matter concerned under s 66A GAA Act;
• consenting to special health care for an Adult with impaired capacity under Chapter 5, Part 3 GAA Act, such as to the donation of tissue, sterilisation, termination of pregnancy, participation in special medical research or experimental health care of an adult, or electroconvulsive therapy or psychosurgery (but see exclusion in ss68(1) and (2) GAA Act and Mental Health Review Tribunal’s jurisdiction to approve electroconvulsive therapy and psychosurgery under s138 of the Mental Health Act);
• consenting to the sterilisation of a child with an impairment under Chapter 5A GAA Act;
• consenting to the use of restrictive practices, that is, the containment and seclusion of an adult with intellectual or cognitive disability under Chapter 5B GAA Act; and
• registering an order made in another jurisdiction under s169 GAA Act.

Procedural powers

Generally speaking, the practice and procedure of QCAT is set out under the Queensland Civil and Administrative Tribunal Act 2009 (Qld). However, the GAA Act provides for some powers specific to guardianship and administration matters.

Interim orders

The Tribunal may make interim orders, without hearing and deciding the proceedings or otherwise complying with the requirements of the GAA Act, including giving notice to parties, if it is satisfied that:

• the Adult concerned has or may have impaired capacity for a matter; and
• there is an immediate risk of harm to the health, welfare or property of the Adult concerned in an application, including because of the risk of abuse, exploitation or neglect of, or self-neglect by, the Adult: s129 GAA Act.

An interim order may only operate to a maximum of 3 months. The order can be renewed in exceptional circumstances.

However, an interim order may not include consent to special health care.

Directions

Under s114 of the GAA Act, QCAT may:

• direct a person to undergo examination by a doctor or psychologist in the ordinary course of the doctor’s medical practice or the psychologist’s practice, including a direction that a party pay for the examination;
• direct the person the subject of the proceedings to be brought before the Tribunal; and/or
• revoke either of these directions.

Such a direction must be complied with unless the person has a reasonable excuse.

A Tribunal may also:

• order a person to give information or material to the Tribunal: s130 GAA Act.
• give advice or directions about the matter as it considers appropriate: s138(1)(a) GAA Act
• make recommendations it considers appropriate about action an active party should take: s138(1)(b) GAA Act.
• give leave for an active party to apply for directions about implementing the recommendation: s138(3) GAA Act.
• give directions to a former attorney for a matter for the Adult: s138AA GAA Act.

Limitation orders

Normally, QCAT proceedings are held in public and each active party is entitled to access a document or other information before the Tribunal.

However, QCAT has the power to make a limitation order if it is necessary to avoid serious harm or injustice to a person. A limitation order is defined at s100 GAA Act as including:

• an adult evidence order– an order to obtain relevant information from the Adult concerned in the matter at a hearing in the absence of anyone else: s106 GAA Act.
• a closure order– an order that the hearing be closed or certain people excluded: s107 GAA Act.
• a non-publication order– an order prohibiting the publication of information about a tribunal proceeding: s108 GAA Act.
• a confidentiality order– an order to withhold information or documents from an active party: s109 GAA Act.

Procedures regarding limitation orders, including the right to be heard in relation to a limitation order and appeals, are set out in sections 104 to 113 of the GAA Act.

This resource is current as of 30 June 2023

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.