Arranging the Deceased Affairs

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This information has been provided by Australian Lawyer, Peter Janssen

Guardianship and Administration Tribunal

Many people with impaired decision-making capacity are capable of making most, or at least some, of the decisions that affect their lives. When the decision-making capacity is seriously impaired, this will mean that certain decisions may have to be made by others.

The problem that arises is that no one has an automatic right to make decisions on behalf of another adult, no matter how closely the two are related. The decision-maker must be legally authorised to act on behalf of the person with impaired decision-making capacity before the decisions can have any legal effect.

Powers of Attorney Act 1998

The Powers of Attorney Act 1998 provided for enduring powers of attorney to cover personal, health and financial matters. An enduring power of attorney is a formal agreement giving someone else the power to make certain decisions on your behalf if “for some reason you are unable to act for yourself”

Guardianship and Administration Act 2000

In the case where there is no enduring power of attorney then problems may arise. The Guardianship and Administration Act 2000, which commenced operation on 1st July 2000, complements the Powers of Attorney Act 1998 and is the final stage in the implementation of recommendations made by the Queensland Law Reform Commission to assist people with impaired decision-making capacity.

The Act established the Guardianship and Administration Tribunal that is empowered to make orders appointing people as guardians and administrators, and to set the terms of their appointment.

The Tribunal therefore provides a legal mechanism to enable decisions to be made when the need arises.

Role of the Tribunal

The Tribunal’s main task is to determine whether or not a person with impaired decision-making capacity needs a guardian or administrator and, if necessary, to make an appointment order. The Tribunal’s other powers include giving directions and advice to guardians and administrators, monitoring, reviewing and amending orders, and ratifying and approving decisions by informal decision makers. Informal decision makers are people who have not been formally appointed by the Tribunal as a person’s guardian or administrator. A president, who is a lawyer, and one or more deputy presidents head the Tribunal. There are approximately twenty tribunal members, all either lawyers and/or people with extensive professional or personal experience dealing with people who have impaired decision-making capacity.

Disputes

Most people with impaired decision-making capacity do not need a guardian or administrator because their family, friends or support network help them make decisions. The Tribunal will only appoint a guardian or administrator if there is no other way to ensure that the interests of the person concerned are protected and that his/her needs are met.

An applicant must be able to demonstrate to the Tribunal that there is a specific need for such an appointment and that existing arrangements are inadequate.

Hearings

Upon receipt of an application, the Tribunal will investigate the situation which has been referred to it and may make independent enquiries and collect information to enable the panel to make a proper decision.

The Tribunal examines documents and hears evidence in much the same way as a Court. The Tribunal must comply with the principles of natural justice. That is, to be fair (without bias) and to give people an opportunity to put forward their case. However, the Tribunal is less formal than a Court of law and is not bound by the legal rules of evidence. Hearings are held throughout Queensland in metropolitan and regional centres. There is no fee payable to the tribunal for making an application. We understand that since 1 July 2000 the Tribunal has dealt with approximately 2000 applications.

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