QCAT Series - Who is an Administrator, Who is a Guardian
In the first in this series we looked at what is QCAT (the Queensland Civil and Administrative Tribunal) and why you need to know.
In short, you need to be aware of QCAT because if you have a client who has lost capacity to make decisions and has not themselves appointed a substitute decision maker (usually by an Enduring Power of Attorney (EPA)) then QCAT can make such an appointment. Generally any interested person can apply to QCAT for an appropriate order on behalf of an adult without capacity. Please refer to our earlier article for more information.
Following on from that earlier article, we now look at who is an administrator and who is a guardian. We explain the different roles and why you may need one or both.
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 include:
- managing bank accounts and investments,
- paying expenses;
- recovering debts;
- performing contracts; and
- 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);
If there is not an appropriate individual to appoint as Administrator then the Public Trustee or a private trustee company may be appointed.
Who is a Guardian?
Guardians make decisions about ‘personal matters’. They are similar in function to an attorney appointed for health and personal matters under an EPA.
Personal matters relate to an adult’s:
- Where they live;
- Who they live with; and
- Day to day decisions such as dress and diet.
An individual (again often a family member) may be appointed as a Guardian. However, they must be:
- At least 18 years old;
Only the Office of the Public Guardian may be appointed where there is no one else appropriate.
Criteria for appointment of an Administrator or Guardian
In order to have an Administrator or Guardian appointed for an adult who lacks capacity QCAT must be satisfied that:
- the adult lacks capacity for the matter (decision); and
- there is a need for a decision 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
- without the appointment, the adult’s needs will not be adequately met or the adult’s interests will not be adequately protected.