If a loved one has lost capacity, Attwood Marshall Lawyers can help you with an application to the Queensland Civil and Administrative Tribunal to become an administrator, writes Estate Litigation Solicitor Melissa Tucker.
When applying to the Queensland Civil and Administrative Tribunal to be an administrator, it is important to know the law recognises everyone’s right to control their own lives. People are presumed to have the capacity to make decisions for themselves unless incapacity is established.
It is important to note that simply making decisions that you perceive to be “bad” does not imply impaired capacity, and making decisions that are potentially harmful does not imply impaired capacity – every individual has the right to make decisions that may result in physical, financial, psychological or other harm. However a consistent pattern of decisions that result in harm to the person or their quality of life may suggest that there is impaired capacity.
The Queensland Civil and Administrative Tribunal provides a legal mechanism for ruling if an adult has impaired capacity, and providing for a guardian or administrator to make decisions on their behalf. The Tribunal has authority to appoint or unappoint guardians and administrators, and to set the limits of the authority of guardians and administrators.
The Tribunal also gives directions and advice to guardians and administrators and has the authority to monitor orders and register orders made in other States and some other countries. The Tribunal also gives consent for special health care.
Who can be appointed by Queensland Civil and Administrative Tribunal to be an administrator?
An administrator is someone appointed by the Tribunal to make financial decisions on behalf of an adult with impaired capacity. The process of applying to be an administrator is quite complex as the Tribunal demands a high standard of applicants – in essence, the process of application requires that a business plan be drawn up to cover expected future costs.
Administrators must be over the age of eighteen and not a paid carer or health provider for the person in question.
Administrators ensure an adult’s needs are met and that their financial interests are protected.
When someone loses capacity due to an illness such as dementia, Alzheimer’s, and they have not prepared an Enduring Power of Attorney an administrator will need to be appointed to manage their affairs and make decision for them.
An administrator may also need to be appointed for an adult when the family can’t decide and are in disputes with each other or the adult simply has no one to take on that role.
What sort of decisions does an administrator have to make on behalf of adults?
Administrator have the authority to make decisions on behalf of the adult such as:
making business decisions
Administrators are not allowed to make decisions about personal or health care matters unless:
they have also been appointed as a guardian for the adult; or
they have been appointed as the adult’s attorney for personal matters under an enduring power of attorney; or
there is no formalised appointment and they are acting as the adult’s statutory health attorney. If the adult can communicate their views and wishes, administrators should take these into account when making any decisions.
What is the function of Queensland Civil and Administrative Tribunal ?
The Queensland Civil and Administrative Tribunal (QCAT) resolves disputes and makes decisions in a way that is fair, just, accessible, quick and inexpensive. A tribunal is less formal than a court, but still makes final decisions which can be enforced.
QCAT makes decisions across a range of matters including guardianship and administration for adults, children and young people matters.
Matters are heard and decided by:
adjudicators (minor civil disputes)
magistrates (minor civil disputes)
trained Justices of the Peace (some minor civil disputes as part of a trial program)
Outside of Brisbane, the local Magistrates Court supplies and accepts all QCAT application forms, so Coolangatta and Southport.
Who can apply to the Queensland Civil and Administrative Tribunal to be an administrator?
Family members, close friends, professionals or anyone who has a genuine and continuing interest in the welfare of an adult with impaired decision making capacity can apply for an administrator to be appointed. Appointees must be over 18 years of age and not a paid carer for the adult.
What are the duties of someone who has been appointed by the Queensland Civil and Administrative Tribunal to be an administrator?
The Guardianship and Administration Act 2000 sets out a number of duties for administrators.
They include the duty to:
act honestly and with reasonable diligence act according to the decision QCAT made
avoid any transactions that could be in conflict with the interests of the adult unless QCAT authorises.
Administrators must also:
keep detailed records of dealings and transactions made on behalf of the adult
submit accounts as specified in QCAT’s decision
keep their assets separate from the adult’s assets
invest prudently and obtain financial advice.
If there are two or more administrators they have a duty to:
make decisions together unless QCAT’s decision states otherwise
consult with the other administrators and any guardians regularly to ensure that the adult’s interests are not prejudiced by a breakdown of communication.
Do you need a legal representative to help you apply to the Queensland Civil and Administrative Tribunal to be an administrator?
Generally you must represent yourself in a QCAT matter.
However, you must ask QCAT for permission to be represented by someone else. In some cases, you have a right to be represented by a lawyer
We would recommend that you seek leave and have a legal representative at the tribunal with you if you are applying to Queensland Civil and Administrative Tribunal to be an administrator
What are the benefits of having a legal representative at Queensland Civil and Administrative Tribunal to be an administrator and to be an administrator?
It can be confusing and at times overwhelming trying to work out how, or where, to proceed to protect an adult’s legal rights. It is therefore important to understand how the Queensland Civil and Administrative Tribunal (QCAT) operates, and when it might be right for you.
Attwood Marshall Lawyers have a wide range of experience in advising clients on the circumstances where it is appropriate to proceed in QCAT or the courts, and in advising on applications to me made to QCAT in relation to an adult.
Can an Administrator can be removed?
An Administrator can be removed if:
they have not acted in the best interests of the adult they have not acted in terms of QCAT’s decision they have neglected their duties or abused their decision-making authority, either generally or for a specific matter they have otherwise contravened the Guardianship and Administration Act 2000
the need for an administrator no longer exists they are no longer competent to act as a decision-maker another person is more appropriate to be the adult’s administrator they no longer wish to act.
If an administrator wishes to withdraw, an application must be made to QCAT.
The tribunal must then give the administrator permission to withdraw.
The administrator’s appointment and responsibilities will end only when permission to withdraw is given.
QCAT can also hear matters in relation to Guardianship.
What is a Guardian?
A guardian is a person QCAT appoints to help an adult with impaired decision making capacity. The guardian ensures the adult’s needs are met and interests are protected by making certain personal and health care decisions on their behalf.
There are three elements to making a decision including:
1. understanding the nature and effect of the decision,
2. freely and voluntarily making a decision, and
3. communicating the decision in some way. If an adult cannot carry out any part of this process for decision making, they are said to have impaired decision making capacity.
Who can be appointed as guardian and how is this done?
Family members, close friends, professionals or anyone who has a genuine and continuing interest in the welfare of an adult with impaired decision making capacity can apply for a guardian to be appointed.
Adults with impaired decision making capacity can also apply on their own behalf. Guardians can only be appointed for adults over the age of 18 years.
Advance appointments can be made for children aged 17½ years or older, which take effect when they turn 18.
Appointees must be over 18 years of age and not a paid carer for the adult.
How long can a guardian be appointed and what decisions can they make?
QCAT may appoint a guardian for a period of up to five years.
Guardians are given the authority to make decisions such as:
where the adult lives
what support services they receive
with whom they have contact or visits
general health care matters
other day-to-day issues.
What types of health care issues do guardians have to consider?
Guardians must ensure whenever they are called to make a decision about health care that the health care is:
Necessary and appropriate to maintain or promote the adult’s health or wellbeing
In the adult’s best interests and, to greatest extent possible, reflects the adult’s views.
If the adult can communicate their views and wishes, guardians should take these into account.
What can someone do if they think that someone is being taken advantage of by their appointed Attorney, such as the attorney using their money for their own advantage?
Sadly, most abusers are family members, which puts both the victim and any witnesses in a difficult spot. I have heard numerous people tell me that their aging loved ones were being taken advantage of by a relative, but the desire to avoid confrontation and even reprisal discourages most people from seeking legal advice. Things become even more complicated if the victim’s cognitive function is in question and if the abuser is a primary caregiver or considered dangerous.
Look out for sudden changes in how the elderly person manages their bank account, such as the withdrawal of large sums of money. There may also be additional names on their bank accounts. An abuser may also make withdrawals with permission from their bank account with the elderly person’s ATM card.
Family members, especially, may try to coerce a elderly person into making radical changes in their Will or other financial documents. These relatives often seek to increase their inheritance when the elderly person dies. People close to the elderly person may also steal possessions from them without their knowledge, often when the elderly person is incapacitated or ill.
If you believe that an aging loved one is a victim of any type of elder abuse, it is crucial to speak up. Reporting it takes the matter out of your hands and enables law enforcement and/or social services agencies to protect the senior in question.
It may be difficult to report the suspected abuser, especially if it is someone you or your loved one is close to. Many elderly people are intimidated by their abusers and are too frightened to report the problem themselves. Your loved one may even discourage you from seeking legal advice or reporting it to the police, but it is important that you must do your part to protect those who are vulnerable.
How can Attwood Marshall Lawyers help with an application to the Queensland Civil and Administrative Tribunal to be an administrator?
Many people assume that having a Will is the main focus of any personal asset planning or business planning. Unfortunately having a legally binding will is only half the protection you need. A will covers you when you pass away and who should look after your affairs; but who will look after your affairs if something happens to you and you are still alive?
If you have an Enduring Power of Attorney, you have the peace of mind knowing that your affairs will be managed by someone that you choose and trust.
If you do not have an Enduring Power of Attorney, then your family has to apply to the Queensland Civil and Administrative Tribunal to be appointed as your legal Guardian to make those important decisions. If a decision needs to be made urgently, then you may be disadvantaged by any delay in an application having to be made to the Tribunal and waiting for the outcome of any hearing.
Accordingly, by having an Enduring Power of Attorney this will prevent any such delays. It will also give you certainty over who will make those decisions as the Tribunal may appoint someone in your family who you do not necessarily wish to manage your affairs.
Contact Attwoood Marshall Lawyers to help you with an application to Queensland Civil and Administrative Tribunal to be an administrator on 1800 621 071