Introduction
This article will be useful for anyone thinking about making an enduring power of attorney, especially is they are handicapped or disabled. It will also be useful for the families of such people.
What is an adult guardian?
An Adult Guardian is appointed by the Guardianship and Administration Tribunal (GAAT) to act as the guardian of an adult in certain situations such as:
- when a decision needs to be made for an adult with no family, friends or service (for example, the adult has dementia, is unable to look after himself, is refusing services such as Meals on Wheels, and lacks capacity to decide whether to move into aged care accommodation);
- where the adult has been abused, neglected or exploited;
- where there is such serious conflict in the family about the decisions to be made for the adult that GAAT decides that it is best for someone external to the family or supportive network to act as the adult’s guardian.
What does ‘independent’ mean?
The Adult Guardian operates independently and without interference by non-government and government organisations.
What does the Office of the Adult Guardian do?
The staff of the Office of the Adult Guardian are employed by Queensland’s Department of Justice and Attorney-General and support the Adult Guardian. The Adult Guardian may delegate specific functions to these officers, who act independently of other organisations in carrying out their functions.
What exactly does the Adult Guardian do?
The Adult Guardian assists by:
- acting as the adult’s decision-maker in certain circumstances (for example, as guardian for personal matters, acting under an order by GAAT);
- consenting to health care issues for the adult (for example, acting as the adult’s guardian, personal attorney or Statutory Health Attorney of last resort);
- investigating allegations of neglect, exploitation or abuse against the adult by his/her guardian, attorney, administrator or others acting under informal decision-making arrangements.
The Adult Guardian also:
- makes representations (on behalf of the adult) to service providers, government and non-government agencies, and may seek help from them;
- can informally mediate or help resolve disputes between people formally appointed to make decisions for the adult, (for example, health care disputes;
- may act as a personal attorney under an Enduring Power of Attorney or Advance Health Directive (this appointment should be as a last resort);
- educates and gives general advice about the operations of the Powers of Attorney Act 1998 and the Guardianship and Administration Act 2000 (especially the functions of the Adult Guardian).
What influences how the Adult Guardian makes decisions?
The Adult Guardian’s decision is always made consistent with the adult’s care and protection, even if this overrides the adult’s wishes.
The views and wishes of the adult (expressed now or when the adult was able to make decisions) and the opinions of family members, friends and others who support the adult are considered when decisions have to be made. The general principles, health care principle and other principles in the Powers of Attorney Act 1998 and the Guardianship and Administration Act 2000 are also applied.
What can the Adult Guardian do if there is a complaint that the adult is being abused, neglected or exploited?
The Adult Guardian may investigate complaints or allegations that an adult is being, or has been, neglected, exploited or abused. The Adult Guardian can also investigate concerns about inappropriate or inadequate decision-making arrangements.
Alternatively, if you have information that abuse, neglect or exploitation is occurring, you can apply to GAAT for an urgent order to protect the adult. If you don’t have enough information, then the Adult Guardian can use the statutory powers listed below to decide if the allegations are substantiated. These powers include the authority to:
- require someone to produce records and accounts (for example, in financial abuse allegations);
- obtain access to any relevant information, including medical files;
- issue a summons ordering a person to provide information (for example, where a person has been uncooperative);
- suspend an Enduring Power of Attorney for up to three months, during which time the Adult Guardian acts as personal attorney and the Public Trustee acts as financial attorney for the adult. (Application will be taken to GAAT for appropriate orders.)
The Adult Guardian may also apply to GAAT for a warrant to enter premises and remove an adult where there is a suspected immediate risk of harm because of neglect, self-neglect, exploitation or abuse.
Strict confidentiality rules apply to any information obtained by the Adult Guardian and whistleblower protection is extended to anyone who refers a case for investigation. An investigation is usually one step in a process of seeking solutions to stop abuse, rather than an end in itself.
What doesn’t the Adult Guardian do?
The Adult Guardian is solely the legal decision-maker for the adult, not a case manager, carer or service provider for an adult. It is important to understand what the Adult Guardian is not authorised to do:
- the Adult Guardian does not have the legal power to investigate systemic abuse of facilities containing adults with impaired decision-making capacity;
- the Adult Guardian does not duplicate police powers of investigation;
- the Adult Guardian does not duplicate internal investigative procedures for handling issues that do not comply with the policies regarding abuse in government or non-government run/funded facilities for adults with impaired capacity. Systemic issues should be reported to the Public Advocate;
- the Adult Guardian may not give legal advice or advice about making wills or general Powers of Attorney. (You should talk to legal professionals, especially regarding matters that significantly impact on your future.);
- where there is a guardian or an attorney acting for the adult in health matters, the Adult Guardian does not interfere because this person (usually a spouse, family member or close friend) is recognised by law as having the authority to make health care decisions on the adult’s behalf.
- the Adult Guardian may not make decisions about the adult’s financial or property matters. (These are made by a private administrator or the Public Trustee.)
- the Adult Guardian does not take on duties normally carried out by family members such as visiting, arranging meals or making appointments.
Can I call the Office of Adult Guardian for help?
Yes, however the Office prioritises its general inquiry service to prevent abuse, neglect and exploitation of adults with impaired capacity.
Before calling the office, read the fact sheets or download information from the website so you understand the various functions of the Adult Guardian and are in a better position to be assisted by staff.
Other information resources
Contact details
The Office of the Adult Guardian
POBox 13554
George Street Qld 4003
Level 3
BrisbaneMagistrates Courts Complex
363 George Street
BrisbaneQld 4000
Telephone: (07) 3234 0870 or 1300 653 187 (the cost of a local call if you live outside the Brisbane area)
Facsimile: (07) 3239 6367
E-mail: adult.guardian@justice.qld.gov.au.
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