If you’ve found yourself in the situation where you must become the legal guardian of an elderly or disabled loved one, there are some things that you need to know. If you are a parent of a disabled child who is approaching adulthood, there are also things that you need to know.
What Is A Guardian?
A guardian is a person appointed by QCAT (Queensland Civil and Adminisrative Tribunal) to help adults with impaired decision-making capacity by making certain personal and health care decisions on their behalf. This makes sure that the adult’s needs are met and their interests are protected.
Generally, guardians can be given the authority to make decisions on behalf of the adult such as:
- where they live
- what support services they receive
- with whom they have contact or visits
- general health care matters
- the approval of containment and seclusion in certain limited circumstances
- the approval of chemical, physical or mechanical restraint
- restricting access to objects
- other day-to-day issues.
What is Impaired Decision Making Capacity?
Impaired decision-making capacity is the inability to go through the process of reaching a decision and putting it into effect. There are three elements to making a decision:
- understanding the nature and effect of the decision;
- freely and voluntarily making a decision; and
- communicating the decision in some way.
If an adult is unable to carry out any part of this process for decision making, the adult is said to have impaired decision-making capacity. Impaired decision-making capacity is not ignorance, eccentricity, different ethical views, cultural diversity, poor communication, poor judgement or poor decision-making.
Are There Limitations to a Guardian’s Powers?
Guardians are not permitted to make decisions about:
- financial or property matters unless they have also been appointed as the adult’s administrator or as attorney for financial matters under an enduring power of attorney
- special health care matters including sterilisation or tissue donation
- special personal matters including making or revoking a will or consenting to marriage or relinquishing a child for adoption.
If an adult can communicate their views and wishes, guardians should take these into account when making any decisions.
Who Can Apply For A Guardian To Be Appointed?
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.
Appointees must be over 18 years of age and not a paid carer for the adult. A paid carer performs services for the adult’s care and receives remuneration other than a carer payment or benefit from the Commonwealth or State Government.
Sometimes there is no one close to the adult who is willing to accept the responsibility. There may also be a dispute about who should act as the guardian or concern about the suitability or competence of a proposed guardian. In these situations, QCAT may appoint the Public Guardian to act on the adult’s behalf.
QCAT can appoint guardians on the following basis:
- a single guardian to make decisions on all or on a specified personal or health care matter only, such as where the adult is to live and with whom
- more than one guardian, giving each guardian specific decision-making authority. Each guardian then has the authority to make decisions on different personal matters
- two or more guardians to make decisions together or to make decisions separately on behalf of the adult.
Before appointing a guardian, QCAT considers the person’s appropriateness and competency.
Who Can Be Appointed As A Guardian?
QCAT requires that the person chosen for appointment as a guardian be someone who/whose:
- is over 18 years of age
- respects the decision making principles specified in the Guardianship and Administration Act 2000 which state that the adult must be given every opportunity to make decisions to the full extent of their capacity
- interests are unlikely to conflict with those of the adult
- outlook, cultural background and method of communication are compatible with those of the adult
- is similarly compatible with anyone else appointed on the adult’s behalf
- is available to act on behalf of the adult and is accessible to the adult
- has the competence to carry out the functions and exercise the powers of a guardian
- is willing to act in accordance with the duties of a guardian.
When considering an application the following factors may weigh against the proposed guardian, if they:
- have any criminal history, or
- have previously been refused or removed from appointment as a guardian, attorney or other person making a decision for someone else.
A paid carer or health provider for the adult is unable to be appointed as their guardian.
The order issued by QCAT states the authority of the guardian including the:
- duration of the appointment
- extent of authority, for example, the guardian may be appointed to make some or all personal and health care decisions
- number of guardians appointed and the nature of the appointment, that is, whether the guardians will make decisions together or separately.
What About a Disabled Child?
Quite often a disabled child who is approaching adulthood lacks the legal ability to execute an Enduring Power of Attorney. In our experience, it is impossible for the disabled child to legally execute an Enduring Power of Attorney document. Yet in most cases, once a child reaches the age of 18, parents continue to assist that child in the management of the disabled child’s finances. Where there is no legal appointment as the adult child’s guardian, it’s an informal arrangement. Without a formal appointment by QCAT as administrator, the parent lacks the legal capacity to make financial decisions for and on behalf of the child. Therefore, quite often, it will be necessary for us to assist a parent/s (or other persons) to make an application to QCAT to be appointed as administrator for the child. This is very similar to being a financial attorney for the child and it enables the administrator to stand in the shoes of the child as if they were the child in dealing with the finances and other property matters of the child.
Similarly, it is common that a disabled child cannot execute an Enduring Power of Attorney document to appoint someone to be their personal and health attorneys. Many personal and health decisions after a child reaches 18 are made by the parents of the child informally. Some assistance is given by the legislation (Powers of Attorney Act), but quite often this may prove inadequate where medical practitioners seek consent for procedures or to formalise certain care arrangements. In those instances, advice should be sought as to whether or not it is appropriate for an application to be made to QCAT for one or more persons to be appointed as the guardian of the disabled child. In this instance a guardian is somewhat akin to a personal and health attorney under an Enduring Power of Attorney document and is capable of making personal and health decisions for the disabled child as if they were the disabled child.
A Special Disability Trust May Be Helpful
Special Disability Trusts are very helpful for parents and immediate family members to plan for the future care and for the on-going accommodation needs of a person with a severe disability. These trusts do not need to be established under your will.
A Special Disability Trust must have only one principal beneficiary (the person for whom the trust is established) who meets the eligibility criteria.
Special Disability Trusts must:
- have only one principal beneficiary (the person for whom the trust is established), who must meet the eligibility criteria
- provide for the accommodation and care needs of the principal beneficiary
- have a trust deed that contains the clauses as set out in the model trust deed
- have an independent trustee, or alternatively have more than one trustee
- comply with the investment restrictions
- provide annual financial statements and
- conduct independent audits when required
The trustee is able to:
- pay for the beneficiary’s dental and medical expenses, including membership costs for private health funds
- pay the maintenance expenses of the trust-property assets
- spend up to $11,500 in a financial year on discretionary items not related to the care and accommodation needs of the beneficiary. (This expenditure should remain compliant with the legislative requirements of a Special Disability Trust).
The assets in Special Disability Trusts up to a value of $596,500.00 (indexed upwards each year) are not taken into account in relation to the social security entitlements of the disabled person.
A Special Disability Trust must be for the benefit of only one disabled person, its purpose must be to provide for the accommodation and care of that person.
If you’d like to speak to someone about the care of a older or disabled person, please contact us today. We offer a free, 10-minute phone consultation.