Guardianship and administration in Queensland 

This article states the law of Queensland. The Guardianship and Administration Act 2000 (Qld) puts its principles at the front and gives them unusually wide reach, and the structure of those principles — not the appointment power — is what most distinguishes Queensland from the other jurisdictions¹. The prior question in a Queensland problem is whether the presumption of capacity has actually been displaced, because the Act starts from the opposite assumption to the one an application invites.

Who the principles bind

Section 11B(1) provides that the general principles must be applied by a person or other entity performing a function or exercising a power under the Act. Section 11B(2) then extends them well beyond formal appointees: a person making a decision for an adult on an informal basis must also apply them. Section 11B(3) encourages the community to apply and promote them.

That second subsection is distinctive. Most family decision-making for an adult with impaired capacity happens informally and without any order, and Queensland brings that conduct within the statutory principles rather than leaving it unregulated.

The presumption of capacity

General principle 1 is a single sentence: "An adult is presumed to have capacity for a matter."

Capacity is presumed for a matter, so the presumption is matter-specific and must be displaced for the particular decision in issue. An applicant asserting incapacity carries the work of displacing it; evidence of a diagnosis, or of incapacity for some other matter, does not do so by itself.

General principle 2 grounds the Act in human rights language: inherent dignity and worth, individual autonomy including the freedom to make one's own choices, non-discrimination, full participation and inclusion, respect for difference, equality of opportunity and accessibility. General principle 3 requires the importance of empowering the adult to exercise those rights to be taken into account, including supporting them to perform valued social roles and become as self-reliant as practicable.

General principle 4 requires the importance of maintaining existing supportive relationships to be taken into account, and expressly acknowledges the role of families and carers in supporting the adult to decide. General principle 5 requires maintenance of the adult's cultural and linguistic environment and values, with an express provision for an Aboriginal person or Torres Strait Islander.

How a function must be performed

General principle 9 states the standard: a person performing a function or exercising a power, or making a decision on an informal basis, must do so in a way that promotes and safeguards the adult's rights, interests and opportunities, and in the way that is least restrictive of them.

That formulation should not be read as a best-interests test. It is directed at rights, interests and opportunities together, and it is immediately qualified by the structured approach in general principle 10.

Structured decision-making: four steps

General principle 10 prescribes how general principle 9 is applied, and it is a sequence:

1. First, recognise and preserve, to the greatest extent practicable, the adult's right to make their own decision, and if possible support the adult to make a decision.
2. Second, recognise and take into account any views, wishes and preferences expressed or demonstrated by the adult.
3. Third, if those views, wishes and preferences cannot be determined, recognise and take into account what the decision-maker considers the adult's views, wishes and preferences would be.
4. Only having recognised and taken into account the matters in steps one to three may the person perform the function, exercise the power or make the decision.

Two details repay attention. Step two reaches preferences demonstrated as well as expressed, so conduct counts and an adult who cannot articulate a preference is not treated as having none. And step four is a gate: the decision may be made only after the earlier steps have been worked through, making the sequence a condition of validity rather than guidance.

The health care principles are separate

Section 11C(1) establishes a distinct set — the health care principles — that must be applied by a person performing a function or exercising a power for a health matter or special health matter. Section 11C(2) extends them to an entity authorised by another Act to decide about prescribed special health care, and s 11C(3) adapts the general and health care principles for that purpose.

A Queensland answer about health decision-making must therefore identify which set of principles governs, rather than applying the general principles alone.

The appointment test

Section 12(1) empowers the tribunal to appoint a guardian for a personal matter or an administrator for a financial matter if satisfied of three things: the adult has impaired capacity for the matter; there is a need for a decision in relation to the matter, or the adult is likely to do something involving unreasonable risk to their health, welfare or property; and without an appointment the adult's needs will not be adequately met or their interests will not be adequately protected.

Capacity, need and inadequacy are cumulative, and each is matter-specific. Section 12(2) permits terms considered appropriate by the tribunal. Chapter 5B deals separately with restrictive practice matters, which in Queensland are handled through this Act rather than a disability statute alone.

Four jurisdictions, four approaches

The comparison is now genuinely instructive:

• Queensland — presumption of capacity, a four-step structured approach ending in imputed views, wishes and preferences, binding informal decision-makers as well as appointees.
• Victoria — will and preferences direct decisions, with personal and social wellbeing as a third-resort fallback and an override confined to preventing serious harm.
• South Australia — paramount consideration is what the adult's wishes would be if not mentally incapacitated.
• New South Wales — welfare and interests are paramount, with the adult's views taken into consideration.

Queensland and Victoria both build a cascade; South Australia goes straight to hypothetical wishes; New South Wales leads with welfare. Applying one State's formula in another is the error this set exists to prevent.

Applying this in a problem question

1. Start from general principle 1 and ask whether the presumption of capacity has been displaced for the particular matter.
2. Check whether the decision-maker is informal; s 11B(2) still binds them.
3. Work general principle 10 as a sequence, and treat step four as a gate rather than a summary.
4. At step two, look for preferences demonstrated by conduct, not only expressed in words.
5. For a health matter, identify whether the health care principles in s 11C govern instead of, or as well as, the general principles.
6. For an appointment, address all three s 12(1) elements separately and keep each matter-specific.

Self-check

• Have I begun from the presumption of capacity rather than from the application?
• Have I applied the principles to informal decision-makers where relevant?
• Have I worked all four steps of structured decision-making in order?
• Have I identified whether the health care principles apply?