Your decision making rights
Under the Guardianship and Administration Act 2000, an adult is presumed to have capacity to make their own decisions.
It may be found you do not have capacity to make your own decisions if you cannot:
- Understand the nature and effect of your decisions
- Freely and voluntarily make decisions
- Communicate the decisions for each decision that you have to make
If you don’t have capacity for certain decisions
If you do not have capacity for some or all of your decisions, then:
- Your chosen Attorney can step in and make decisions for you. This can be done through your Enduring Power of Attorney document or Advance Health Directive (for personal decisions only).
- QCAT can appoint a decision maker if there is a need for one. Sometimes this is a government funded agency; Public Trustee Queensland for administrative decisions and Office of Public Guardian for guardianship decisions.
- Under the Queensland Civil and Administrative Tribunal Act 2009, if you have impaired capacity, you may appear without representation or be represented by someone else.
- People can help you informally to make decisions such as your family or friends
If you have a substitute decision maker, at all times:
- Your decision maker is expected to stand in your shoes and make decisions that you agree with, unless it involves a risk to your safety or health
- Your decision maker must only make the decisions for you for the types of things they have been appointed for (There will be other decisions you still have a right to make)
Enduring Power of Attorney (EPOA) – Your Rights
In Queensland people have the option of creating a legal document called an Enduring Power of Attorney to nominate others to act on their behalf and make decisions for them if they are unable. These decisions may include personal, health or financial decisions, which may be simple or complex. EPOA documents can only be made when you have capacity.
For those who act as an Attorney under an EPOA, the role can be confusing and often people are not given any direction on how to carry out their role appropriately. To make it easier for Attorneys to act in their role as decision maker, there are some resources available. Looking at these resources can also help those who have Attorneys to understand how their Attorney should be making decisions for them.
How to Act Approporiately as an Attorney in Qld – YouTube Video
Duties and Responsibilities as an Attorney under an EPOA in Qld – This outlines the role of an Attorney under and EPOA
The General Principles and Health Care Principle – This outlines how decisions should be made by an Attorney
If after looking at the above resources you feel your Attorney is not acting in your best interest, see our Decision Making – Help and Complaints section for referrals.
Public Trustee Queensland – Your Rights
Public Trustee Queensland can manage finances if you are unable to make your own decisions. Public Trustee Queensland charges a fee for acting as Administrator or Financial Attorney. It is the role of the Administrator or Attorney to:
- Determine the full nature and extent of your financial interests
- Ensure you obtain all entitlements to income benefits (eg: pensions)
- Develop a budget covering expected income and expenditure that ensures financial security and maximizes your independence and quality of life
- Maintain clear and accurate records, including receipts, of all actions taken on your behalf
- Initiate and follow up any matters that affect may affect you, including taxation, social security, legal claims and insurance
- Ensure your participation in the decision making process to the greatest extent practicable
- To recognize and take into account your cultural and religious values
- Act in accordance with the Trusts Act 1973 when making investments on your behalf. This includes an obligation to review the performance of investments, consider the risk of capital or income loss or depreciation, the likely income return and the timing of the income return.
Phone: 1300 360 044
Office of the Public Guardian – Your Rights
The Office of the Public Guardian (OPG) advocates for adults’ rights, access to services, independence and choices as part of a supported decision-making model. The OPG may be appointed to you as a guardian by QCAT if it is found that are unable to make your own decisions, need a guardian and have no other suitable guardians available to you. The OPG can:
- Make personal and health decisions for adults with impaired decision-making capacity if they are your guardian or attorney
- Investigate allegations of abuse, neglect or exploitation
- Advocate and mediate for you if you have impaired decision-making capacity, and educate the public on the guardianship system.
Your rights under the OPG include:
- Access to information
- The Office of the Public Guardian must ensure that you and any other key people in your life have access to information about:
- The role of the office
- The authority of the guardian
- Customer service standards
- The use of interpreters
- How to request reasons for a decision
- How to make a complaint or have a decision reviewed
Support in decision making capacity
- The Guardian must ensure that all reasonable efforts are made to support you to exercise your own decision making capacity t the greatest extent possible
- Arrangements should be made which best support your expressed will and preferences
- Decisions should acknowledge the role and impact of significant support people in your life
Ascertain will and preferences
- The guardian making legal decisions must:
- Have direct contact with you at least once a year
- Acknowledge your will and preferences in outcomes
- Ascertain what you would likely want, where it is not possible to determine the current will and preferences – they should give regard to all available information including consulting with family members, carers and other significant people
- Make reasonable attempts resolve any dispute that may arise if you object to a decision
- The guardian must ensure you have access to housing, health care, support services as well as the ability to participate in the community (education, employment, recreation, group membership)
- Guardianship services must ensure their staff are appropriately screened through a police check, working with children check or a working with vulnerable children check
- They must conduct an assessment and reviews to consider you are safe and whether you have experienced abuse, exploitation or neglect
- Ensure you or any relevant people in your life have access to education about the risk of abuse and how to prevent it
- Refer you to an appropriate authority where there is any reasonable suspicion of abuse
- Any person in the role of making guardianship decisions must make those decisions according to relevant legislative principles and principles
- Only make decisions according to the authority delegated to them
- Communicate decisions to you and any key persons in a meaningful manner and provide written reasons for those decisions when requested to do so
- Review their decision making on a regular basis
Records of Information
- Guardians must maintain records of all decisions, with notes representing the views of the represented person and those of any other relevant parties, including timeframes, conditions and reasons for decisions
Participation in guardianship reviews
- A review f the Guardianship Order by the Board, Tribunal or Court may be requested at any time if there is a need to extend, review or revoke the powers given under the Order. Including situations where the Order is not working in a way that is least restrictive on the rights of the represented person
Privacy and confidentiality
- All relevant government privacy and confidentiality requirement, including any relevant Codes of Conduct must be complied.
Phone: 1300 653 187 or (07) 3234 0870