This law lets the tribunal appoint guardians (personal matters) and administrators (financial matters) when an adult lacks capacity; it includes advance appointments for young people and special missing‑person appointments and sets out eligibility, duties, review and revocation rules (s.12; s.13; s.12A; s.28; s.26). The tribunal decides appointments and conditions, can require disclosures and security, and may order reimbursement or tribunal‑approved remuneration from the adult’s estate; appointed persons must keep records, avoid conflicts and face penalties for non‑compliance (s.19; s.16–17; s.47–49; s.48).
The Guardianship and Administration Act 2000 (the Act) establishes a comprehensive statutory regime for the appointment, powers, duties and oversight of guardians and administrators for adults with impaired capacity. Chapter 3, Part 1 (the focus of the provided extract) is the gateway provision: it empowers the Queensland Civil and Administrative Tribunal (the tribunal) to make appointment orders under s.12 where the tribunal is satisfied of three cumulative criteria in s.12(1): (a) the adult has impaired capacity for the relevant personal or financial matter; (b) there is a need for a decision or a likelihood of unreasonable risk to the adult’s health, welfare or property; and (c) without an appointment the adult’s needs will not be adequately met or their interests adequately protected. The appointment may be on terms the tribunal considers appropriate (s.12(2)) and may be made on the tribunal’s own initiative or on application by the adult, the public guardian or an interested person (s.12(3)). Express carve-outs apply: s.12(4) states the section does not apply to guardians for restrictive practice matters under ch.5B, which are governed by s.80ZD.
The regime is not limited to standard appointments. Section 12A (inserted by the 2019 amendments) permits appointment of an administrator for a financial matter where the adult is a “missing person” (defined in s.12A(2) as whereabouts unknown, reasonable search efforts made, and no contact for at least 90 days with household members or likely correspondents). The adult must usually reside in Queensland and there must be a need or likely adverse effect on interests without an appointment. The Act applies with necessary modifications (s.12A(3)), and applications are limited to spouses, relatives, the public trustee or interested persons (s.12A(5)). Section 12B prevents overlap with the public trustee’s existing administration under the Public Trustee Act 1978, s.104(1), but permits substitution where the public trustee acts under s.104(2).
Current sections
Direct links to the current provisions in Guardianship and Administration Act 2000.
484
ch.3-pt.1
Making an appointment order
Making an appointment order
sec.12
Appointment
sec.12 Appointment
The tribunal may, by order, appoint a guardian for a personal matter, or an administrator for a financial matter, for an adult if the tribunal is satisfied—
the adult has impaired capacity for the matter; and
there is a need for a decision in relation to the matter or the adult is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the adult’s health, welfare or property; and
without an appointment—
the adult’s needs will not be adequately met; or
the adult’s interests will not be adequately protected.
The appointment may be on terms considered appropriate by the tribunal.
The tribunal may make the order on its own initiative or on the application of the adult, the public guardian or an interested person.
This section does not apply for the appointment of a guardian for a restrictive practice matter under chapter 5B .
Section 80ZD provides for the appointment of guardians for restrictive practice matters.
s 12 amd 2008 No. 23 s 15 ; 2014 No. 26 s 240 (1)
(sec.12-ssec.1) The tribunal may, by order, appoint a guardian for a personal matter, or an administrator for a financial matter, for an adult if the tribunal is satisfied— the adult has impaired capacity for the matter; and there is a need for a decision in relation to the matter or the adult is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the adult’s health, welfare or property; and without an appointment— the adult’s needs will not be adequately met; or the adult’s interests will not be adequately protected.
(sec.12-ssec.2) The appointment may be on terms considered appropriate by the tribunal.
(sec.12-ssec.3) The tribunal may make the order on its own initiative or on the application of the adult, the public guardian or an interested person.
(sec.12-ssec.4) This section does not apply for the appointment of a guardian for a restrictive practice matter under chapter 5B . Section 80ZD provides for the appointment of guardians for restrictive practice matters.
(a) the adult has impaired capacity for the matter; and
(b) there is a need for a decision in relation to the matter or the adult is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the adult’s health, welfare or property; and
(c) without an appointment— (i) the adult’s needs will not be adequately met; or (ii) the adult’s interests will not be adequately protected.
(i) the adult’s needs will not be adequately met; or
(ii) the adult’s interests will not be adequately protected.
(i) the adult’s needs will not be adequately met; or
(ii) the adult’s interests will not be adequately protected.
sec.12A
Appointment—missing person
sec.12A Appointment—missing person
The tribunal may, by order, appoint an administrator for a financial matter for an adult if the tribunal is satisfied—
the adult is a missing person; and
the adult usually resides in the State; and
there is, or is likely to be, a need for a decision in relation to the matter; and
without an appointment the adult’s interests in the matter would be adversely affected.
The tribunal may be satisfied an adult is a missing person only if the tribunal is satisfied that—
it is not known if the adult is alive; and
reasonable efforts have been made to locate the adult; and
for at least 90 days the adult has not contacted—
anyone who lives at the adult’s last-known home address; or
any relative or friend of the adult with whom the adult is likely to communicate.
This Act applies, with necessary changes, to an appointment under this section.
The appointment may be on terms considered appropriate by the tribunal.
An application for the appointment of an administrator under subsection (1) may be made by—
the adult’s spouse; or
a relative of the adult; or
the public trustee; or
an interested person for the adult.
s 12A ins 2019 No. 9 s 9
(sec.12A-ssec.1) The tribunal may, by order, appoint an administrator for a financial matter for an adult if the tribunal is satisfied— the adult is a missing person; and the adult usually resides in the State; and there is, or is likely to be, a need for a decision in relation to the matter; and without an appointment the adult’s interests in the matter would be adversely affected.
(sec.12A-ssec.2) The tribunal may be satisfied an adult is a missing person only if the tribunal is satisfied that— it is not known if the adult is alive; and reasonable efforts have been made to locate the adult; and for at least 90 days the adult has not contacted— anyone who lives at the adult’s last-known home address; or any relative or friend of the adult with whom the adult is likely to communicate.
(sec.12A-ssec.3) This Act applies, with necessary changes, to an appointment under this section.
(sec.12A-ssec.4) The appointment may be on terms considered appropriate by the tribunal.
(sec.12A-ssec.5) An application for the appointment of an administrator under subsection (1) may be made by— the adult’s spouse; or a relative of the adult; or the public trustee; or an interested person for the adult.
(a) the adult is a missing person; and
(b) the adult usually resides in the State; and
(c) there is, or is likely to be, a need for a decision in relation to the matter; and
(d) without an appointment the adult’s interests in the matter would be adversely affected.
(a) it is not known if the adult is alive; and
(b) reasonable efforts have been made to locate the adult; and
(c) for at least 90 days the adult has not contacted— (i) anyone who lives at the adult’s last-known home address; or (ii) any relative or friend of the adult with whom the adult is likely to communicate.
(i) anyone who lives at the adult’s last-known home address; or
(ii) any relative or friend of the adult with whom the adult is likely to communicate.
(i) anyone who lives at the adult’s last-known home address; or
(ii) any relative or friend of the adult with whom the adult is likely to communicate.
(a) the adult’s spouse; or
(b) a relative of the adult; or
(c) the public trustee; or
(d) an interested person for the adult.
sec.12B
Relationship with Public Trustee Act 1978
sec.12B Relationship with Public Trustee Act 1978
The tribunal may not appoint an administrator under section 12A for a financial matter for an adult if the public trustee is the administrator under the Public Trustee Act 1978 , section 104 (1) of the property to which the financial matter relates.
The tribunal may appoint an administrator under section 12A for a financial matter for an adult relating to property of which the public trustee is the administrator under the Public Trustee Act 1978 , section 104 (2) .
On the making of an appointment of an administrator as mentioned in subsection (2) , the public trustee ceases to be the administrator of the property under the Public Trustee Act 1978 , section 104 (2) .
s 12B ins 2019 No. 9 s 9
(sec.12B-ssec.1) The tribunal may not appoint an administrator under section 12A for a financial matter for an adult if the public trustee is the administrator under the Public Trustee Act 1978 , section 104 (1) of the property to which the financial matter relates.
(sec.12B-ssec.2) The tribunal may appoint an administrator under section 12A for a financial matter for an adult relating to property of which the public trustee is the administrator under the Public Trustee Act 1978 , section 104 (2) .
(sec.12B-ssec.3) On the making of an appointment of an administrator as mentioned in subsection (2) , the public trustee ceases to be the administrator of the property under the Public Trustee Act 1978 , section 104 (2) .
sec.13
Advance appointment
sec.13 Advance appointment
The tribunal may, by order, make an appointment of a guardian for a personal matter, or an administrator for a financial matter, for an individual who is at least 17 1 / 2 years but not 18 years if the tribunal is satisfied—
there is a reasonable likelihood, when the individual turns 18, the individual will have impaired capacity for the matter; and
there is a reasonable likelihood, when the individual turns 18—
there will be a need to do something in relation to the matter; or
the individual is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the individual’s health, welfare or property; and
there is a reasonable likelihood, without an appointment, when the individual turns 18—
the individual’s needs would not be adequately met; or
the individual’s interests would not be adequately protected.
This Act applies, with necessary changes, to an appointment under this section.
The appointment begins when the individual turns 18.
The appointment ends when the individual turns 19, unless the tribunal orders the appointment to be for a longer period.
The tribunal may order the appointment for a longer period only if the tribunal considers—
the need for an appointment will continue for the longer period; and
the need for the tribunal to review the appointment is very limited.
The longer period may be—
if the administrator is the public trustee or a trustee company under the Trustee Companies Act 1968 —the period decided by the tribunal; or
otherwise—a period of not more than 5 years.
The appointment may be on terms considered appropriate by the tribunal.
The tribunal may make the order on its own initiative or on the application of the individual or an interested person.
This section does not apply for the appointment of a guardian for a restrictive practice matter under chapter 5B .
s 13 amd 2007 No. 37 s 74 ; 2008 No. 23 s 16
(sec.13-ssec.1) The tribunal may, by order, make an appointment of a guardian for a personal matter, or an administrator for a financial matter, for an individual who is at least 17 1 / 2 years but not 18 years if the tribunal is satisfied— there is a reasonable likelihood, when the individual turns 18, the individual will have impaired capacity for the matter; and there is a reasonable likelihood, when the individual turns 18— there will be a need to do something in relation to the matter; or the individual is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the individual’s health, welfare or property; and there is a reasonable likelihood, without an appointment, when the individual turns 18— the individual’s needs would not be adequately met; or the individual’s interests would not be adequately protected.
(sec.13-ssec.2) This Act applies, with necessary changes, to an appointment under this section.
(sec.13-ssec.3) The appointment begins when the individual turns 18.
(sec.13-ssec.4) The appointment ends when the individual turns 19, unless the tribunal orders the appointment to be for a longer period.
(sec.13-ssec.5) The tribunal may order the appointment for a longer period only if the tribunal considers— the need for an appointment will continue for the longer period; and the need for the tribunal to review the appointment is very limited.
(sec.13-ssec.6) The longer period may be— if the administrator is the public trustee or a trustee company under the Trustee Companies Act 1968 —the period decided by the tribunal; or otherwise—a period of not more than 5 years.
(sec.13-ssec.7) The appointment may be on terms considered appropriate by the tribunal.
(sec.13-ssec.8) The tribunal may make the order on its own initiative or on the application of the individual or an interested person.
(sec.13-ssec.9) This section does not apply for the appointment of a guardian for a restrictive practice matter under chapter 5B .
(a) there is a reasonable likelihood, when the individual turns 18, the individual will have impaired capacity for the matter; and
(b) there is a reasonable likelihood, when the individual turns 18— (i) there will be a need to do something in relation to the matter; or (ii) the individual is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the individual’s health, welfare or property; and
(i) there will be a need to do something in relation to the matter; or
(ii) the individual is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the individual’s health, welfare or property; and
(c) there is a reasonable likelihood, without an appointment, when the individual turns 18— (i) the individual’s needs would not be adequately met; or (ii) the individual’s interests would not be adequately protected.
(i) the individual’s needs would not be adequately met; or
(ii) the individual’s interests would not be adequately protected.
(i) there will be a need to do something in relation to the matter; or
(ii) the individual is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the individual’s health, welfare or property; and
(i) the individual’s needs would not be adequately met; or
(ii) the individual’s interests would not be adequately protected.
(a) the need for an appointment will continue for the longer period; and
(b) the need for the tribunal to review the appointment is very limited.
(a) if the administrator is the public trustee or a trustee company under the Trustee Companies Act 1968 —the period decided by the tribunal; or
(b) otherwise—a period of not more than 5 years.
sec.13A
Advance appointment—guardian for restrictive practice matter
sec.13A Advance appointment—guardian for restrictive practice matter
The tribunal may, by order, make an appointment of a guardian for a restrictive practice matter under chapter 5B for an individual who is at least 17 1 / 2 years but not 18 years if the tribunal is satisfied—
there is a reasonable likelihood, when the individual turns 18, the individual will have impaired capacity for the matter; and
the individual’s behaviour has previously resulted in harm to the individual or others; and
there is a reasonable likelihood, when the individual turns 18—
there will be a need for a decision about the restrictive practice matter; and
without the appointment—
the individual’s behaviour is likely to cause harm to the individual or others; and
the individual’s interests would not be adequately protected.
This Act applies, with necessary changes, to an appointment under this section.
The appointment begins when the individual turns 18.
The appointment ends—
on the day ordered by the tribunal, which must not be later than the day the individual turns 19; or
if no day is ordered by the tribunal—when the individual turns 19.
The appointment may be on terms considered appropriate by the tribunal.
The tribunal may make the order on its own initiative or on the application of any of the following—
the individual;
an interested person for the individual;
a relevant service provider;
the chief executive (disability services);
the public guardian;
if the individual is subject to a forensic order, treatment support order or treatment authority under the Mental Health Act 2016 —the chief psychiatrist.
s 13A ins 2008 No. 23 s 17
amd 2014 No. 26 s 240 (1) ; 2016 No. 5 s 923 sch 4 ; 2019 No. 19 s 81 sch 1
(sec.13A-ssec.1) The tribunal may, by order, make an appointment of a guardian for a restrictive practice matter under chapter 5B for an individual who is at least 17 1 / 2 years but not 18 years if the tribunal is satisfied— there is a reasonable likelihood, when the individual turns 18, the individual will have impaired capacity for the matter; and the individual’s behaviour has previously resulted in harm to the individual or others; and there is a reasonable likelihood, when the individual turns 18— there will be a need for a decision about the restrictive practice matter; and without the appointment— the individual’s behaviour is likely to cause harm to the individual or others; and the individual’s interests would not be adequately protected.
(sec.13A-ssec.2) This Act applies, with necessary changes, to an appointment under this section.
(sec.13A-ssec.3) The appointment begins when the individual turns 18.
(sec.13A-ssec.4) The appointment ends— on the day ordered by the tribunal, which must not be later than the day the individual turns 19; or if no day is ordered by the tribunal—when the individual turns 19.
(sec.13A-ssec.5) The appointment may be on terms considered appropriate by the tribunal.
(sec.13A-ssec.6) The tribunal may make the order on its own initiative or on the application of any of the following— the individual; an interested person for the individual; a relevant service provider; the chief executive (disability services); the public guardian; if the individual is subject to a forensic order, treatment support order or treatment authority under the Mental Health Act 2016 —the chief psychiatrist.
(a) there is a reasonable likelihood, when the individual turns 18, the individual will have impaired capacity for the matter; and
(b) the individual’s behaviour has previously resulted in harm to the individual or others; and
(c) there is a reasonable likelihood, when the individual turns 18— (i) there will be a need for a decision about the restrictive practice matter; and (ii) without the appointment— (A) the individual’s behaviour is likely to cause harm to the individual or others; and (B) the individual’s interests would not be adequately protected.
(i) there will be a need for a decision about the restrictive practice matter; and
(ii) without the appointment— (A) the individual’s behaviour is likely to cause harm to the individual or others; and (B) the individual’s interests would not be adequately protected.
(A) the individual’s behaviour is likely to cause harm to the individual or others; and
(B) the individual’s interests would not be adequately protected.
(i) there will be a need for a decision about the restrictive practice matter; and
(ii) without the appointment— (A) the individual’s behaviour is likely to cause harm to the individual or others; and (B) the individual’s interests would not be adequately protected.
(A) the individual’s behaviour is likely to cause harm to the individual or others; and
(B) the individual’s interests would not be adequately protected.
(A) the individual’s behaviour is likely to cause harm to the individual or others; and
(B) the individual’s interests would not be adequately protected.
(a) on the day ordered by the tribunal, which must not be later than the day the individual turns 19; or
(b) if no day is ordered by the tribunal—when the individual turns 19.
(a) the individual;
(b) an interested person for the individual;
(c) a relevant service provider;
(d) the chief executive (disability services);
(e) the public guardian;
(f) if the individual is subject to a forensic order, treatment support order or treatment authority under the Mental Health Act 2016 —the chief psychiatrist.
sec.14
Appointment of 1 or more eligible guardians and administrators
sec.14 Appointment of 1 or more eligible guardians and administrators
The tribunal may appoint a person as guardian or administrator for a matter only if—
for appointment as a guardian, the person is—
a person who is at least 18 years and not a paid carer, or health provider, for the adult; or
the public guardian; and
for appointment as an administrator, the person is—
a person who is at least 18 years, not a paid carer, or health provider, for the adult and not bankrupt or taking advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966 (Cwlth) or a similar law of a foreign jurisdiction; or
the public trustee or a trustee company under the Trustee Companies Act 1968 ; and
having regard to the matters mentioned in section 15 (1) , the tribunal considers the person appropriate for appointment.
Despite subsection (1) (a) (ii) , the tribunal may appoint the public guardian as guardian for a matter only if there is no other appropriate person available for appointment for the matter.
Subject to section 74 , no-one may be appointed as a guardian for a special personal matter or special health matter.
The tribunal may consent to particular special health care—see section 68 (Special health care).
The tribunal may appoint a person as guardian or administrator for a matter for an adult on the application of the adult’s parent only if the tribunal has informed the parent of the tribunal’s power under subsection (6) (e) to appoint successive appointees for the matter.
A failure by the tribunal to comply with subsection (4) does not affect an appointment made by the tribunal.
The tribunal may appoint 1 or more of the following—
a single appointee for a matter or all matters;
different appointees for different matters;
a person to act as appointee for a matter or all matters in a stated circumstance;
alternative appointees for a matter or all matters so power is given to a particular appointee only in stated circumstances;
successive appointees for a matter or all matters so power is given to a particular appointee only when power given to a previous appointee ends;
joint or several, or joint and several, appointees for a matter or all matters;
2 or more joint appointees for a matter or all matters, being a number less than the total number of appointees for the matter or all matters.
If the tribunal makes an appointment because an adult has impaired capacity for a matter and the tribunal does not consider the impaired capacity is permanent, the tribunal must state in its order when it considers it appropriate for the appointment to be reviewed.
Otherwise periodic reviews happen under section 28 .
s 14 amd 2007 No. 37 s 75 ; 2010 No. 2 s 96 sch 1 ; 2014 No. 26 s 240 (1) ; 2019 No. 9 s 10
(sec.14-ssec.1) The tribunal may appoint a person as guardian or administrator for a matter only if— for appointment as a guardian, the person is— a person who is at least 18 years and not a paid carer, or health provider, for the adult; or the public guardian; and for appointment as an administrator, the person is— a person who is at least 18 years, not a paid carer, or health provider, for the adult and not bankrupt or taking advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966 (Cwlth) or a similar law of a foreign jurisdiction; or the public trustee or a trustee company under the Trustee Companies Act 1968 ; and having regard to the matters mentioned in section 15 (1) , the tribunal considers the person appropriate for appointment.
(sec.14-ssec.2) Despite subsection (1) (a) (ii) , the tribunal may appoint the public guardian as guardian for a matter only if there is no other appropriate person available for appointment for the matter.
(sec.14-ssec.3) Subject to section 74 , no-one may be appointed as a guardian for a special personal matter or special health matter. The tribunal may consent to particular special health care—see section 68 (Special health care).
(sec.14-ssec.4) The tribunal may appoint a person as guardian or administrator for a matter for an adult on the application of the adult’s parent only if the tribunal has informed the parent of the tribunal’s power under subsection (6) (e) to appoint successive appointees for the matter.
(sec.14-ssec.5) A failure by the tribunal to comply with subsection (4) does not affect an appointment made by the tribunal.
(sec.14-ssec.6) The tribunal may appoint 1 or more of the following— a single appointee for a matter or all matters; different appointees for different matters; a person to act as appointee for a matter or all matters in a stated circumstance; alternative appointees for a matter or all matters so power is given to a particular appointee only in stated circumstances; successive appointees for a matter or all matters so power is given to a particular appointee only when power given to a previous appointee ends; joint or several, or joint and several, appointees for a matter or all matters; 2 or more joint appointees for a matter or all matters, being a number less than the total number of appointees for the matter or all matters.
(sec.14-ssec.7) If the tribunal makes an appointment because an adult has impaired capacity for a matter and the tribunal does not consider the impaired capacity is permanent, the tribunal must state in its order when it considers it appropriate for the appointment to be reviewed. Otherwise periodic reviews happen under section 28 .
(a) for appointment as a guardian, the person is— (i) a person who is at least 18 years and not a paid carer, or health provider, for the adult; or (ii) the public guardian; and
(i) a person who is at least 18 years and not a paid carer, or health provider, for the adult; or
(ii) the public guardian; and
(b) for appointment as an administrator, the person is— (i) a person who is at least 18 years, not a paid carer, or health provider, for the adult and not bankrupt or taking advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966 (Cwlth) or a similar law of a foreign jurisdiction; or (ii) the public trustee or a trustee company under the Trustee Companies Act 1968 ; and
(i) a person who is at least 18 years, not a paid carer, or health provider, for the adult and not bankrupt or taking advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966 (Cwlth) or a similar law of a foreign jurisdiction; or
(ii) the public trustee or a trustee company under the Trustee Companies Act 1968 ; and
(c) having regard to the matters mentioned in section 15 (1) , the tribunal considers the person appropriate for appointment.
(i) a person who is at least 18 years and not a paid carer, or health provider, for the adult; or
(ii) the public guardian; and
(i) a person who is at least 18 years, not a paid carer, or health provider, for the adult and not bankrupt or taking advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966 (Cwlth) or a similar law of a foreign jurisdiction; or
(ii) the public trustee or a trustee company under the Trustee Companies Act 1968 ; and
(a) a single appointee for a matter or all matters;
(b) different appointees for different matters;
(c) a person to act as appointee for a matter or all matters in a stated circumstance;
(d) alternative appointees for a matter or all matters so power is given to a particular appointee only in stated circumstances;
(e) successive appointees for a matter or all matters so power is given to a particular appointee only when power given to a previous appointee ends;
(f) joint or several, or joint and several, appointees for a matter or all matters;
(g) 2 or more joint appointees for a matter or all matters, being a number less than the total number of appointees for the matter or all matters.
sec.15
Appropriateness considerations
sec.15 Appropriateness considerations
In deciding whether a person is appropriate for appointment as a guardian or administrator for an adult, the tribunal must consider the following matters ( appropriateness considerations )—
the general principles and whether the person is likely to apply them;
if the appointment is for a health matter—the health care principles and whether the person is likely to apply the principles;
the extent to which the adult’s and person’s interests are likely to conflict;
whether the adult and person are compatible including, for example, whether the person has appropriate communication skills or appropriate cultural or social knowledge or experience, to be compatible with the adult;
if more than 1 person is to be appointed—whether the persons are compatible;
whether the person would be available and accessible to the adult;
the person’s appropriateness and competence to perform functions and exercise powers under an appointment order, including whether the person has ever been a paid carer for the adult.
The fact a person is a relation of the adult does not, of itself, mean the adult’s and person’s interests are likely to conflict.
Also, the fact a person may be a beneficiary of the adult’s estate on the adult’s death does not, of itself, mean the adult’s and person’s interests are likely to conflict.
In considering the person’s appropriateness and competence, the tribunal must have regard to the following—
the nature and circumstances of any criminal history, whether in Queensland or elsewhere, of the person including the likelihood the commission of any offence in the criminal history may adversely affect the adult;
the nature and circumstances of any refusal of, or removal from, appointment, whether in Queensland or elsewhere, as a guardian, administrator, attorney or other person making a decision for someone else;
if the proposed appointment is of an administrator and the person is an individual—
the nature and circumstances of the person having been a bankrupt or taking advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966 (Cwlth) or a similar law of a foreign jurisdiction; and
the nature and circumstances of a proposed, current or previous arrangement with the person’s creditors under the Bankruptcy Act 1966 (Cwlth) , part 10 or a similar law of a foreign jurisdiction; and
the nature and circumstances of a proposed, current or previous external administration of a corporation, partnership or other entity of which the person is or was a director, secretary or partner or in whose management, direction or control the person is or was involved.
In this section—
attorney means—
an attorney under a power of attorney; or
an attorney under an advance health directive or similar document under the law of another jurisdiction.
power of attorney means—
a general power of attorney made under the Powers of Attorney Act 1998 ; or
an enduring power of attorney; or
a power of attorney made otherwise than under the Powers of Attorney Act 1998 , whether before or after its commencement; or
a similar document under the law of another jurisdiction.
s 15 amd 2019 No. 9 s 11
(sec.15-ssec.1) In deciding whether a person is appropriate for appointment as a guardian or administrator for an adult, the tribunal must consider the following matters ( appropriateness considerations )— the general principles and whether the person is likely to apply them; if the appointment is for a health matter—the health care principles and whether the person is likely to apply the principles; the extent to which the adult’s and person’s interests are likely to conflict; whether the adult and person are compatible including, for example, whether the person has appropriate communication skills or appropriate cultural or social knowledge or experience, to be compatible with the adult; if more than 1 person is to be appointed—whether the persons are compatible; whether the person would be available and accessible to the adult; the person’s appropriateness and competence to perform functions and exercise powers under an appointment order, including whether the person has ever been a paid carer for the adult.
(sec.15-ssec.2) The fact a person is a relation of the adult does not, of itself, mean the adult’s and person’s interests are likely to conflict.
(sec.15-ssec.3) Also, the fact a person may be a beneficiary of the adult’s estate on the adult’s death does not, of itself, mean the adult’s and person’s interests are likely to conflict.
(sec.15-ssec.4) In considering the person’s appropriateness and competence, the tribunal must have regard to the following— the nature and circumstances of any criminal history, whether in Queensland or elsewhere, of the person including the likelihood the commission of any offence in the criminal history may adversely affect the adult; the nature and circumstances of any refusal of, or removal from, appointment, whether in Queensland or elsewhere, as a guardian, administrator, attorney or other person making a decision for someone else; if the proposed appointment is of an administrator and the person is an individual— the nature and circumstances of the person having been a bankrupt or taking advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966 (Cwlth) or a similar law of a foreign jurisdiction; and the nature and circumstances of a proposed, current or previous arrangement with the person’s creditors under the Bankruptcy Act 1966 (Cwlth) , part 10 or a similar law of a foreign jurisdiction; and the nature and circumstances of a proposed, current or previous external administration of a corporation, partnership or other entity of which the person is or was a director, secretary or partner or in whose management, direction or control the person is or was involved.
(sec.15-ssec.5) In this section— attorney means— an attorney under a power of attorney; or an attorney under an advance health directive or similar document under the law of another jurisdiction. power of attorney means— a general power of attorney made under the Powers of Attorney Act 1998 ; or an enduring power of attorney; or a power of attorney made otherwise than under the Powers of Attorney Act 1998 , whether before or after its commencement; or a similar document under the law of another jurisdiction.
(a) the general principles and whether the person is likely to apply them;
(b) if the appointment is for a health matter—the health care principles and whether the person is likely to apply the principles;
(c) the extent to which the adult’s and person’s interests are likely to conflict;
(d) whether the adult and person are compatible including, for example, whether the person has appropriate communication skills or appropriate cultural or social knowledge or experience, to be compatible with the adult;
(e) if more than 1 person is to be appointed—whether the persons are compatible;
(f) whether the person would be available and accessible to the adult;
(g) the person’s appropriateness and competence to perform functions and exercise powers under an appointment order, including whether the person has ever been a paid carer for the adult.
(a) the nature and circumstances of any criminal history, whether in Queensland or elsewhere, of the person including the likelihood the commission of any offence in the criminal history may adversely affect the adult;
(b) the nature and circumstances of any refusal of, or removal from, appointment, whether in Queensland or elsewhere, as a guardian, administrator, attorney or other person making a decision for someone else;
(c) if the proposed appointment is of an administrator and the person is an individual— (i) the nature and circumstances of the person having been a bankrupt or taking advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966 (Cwlth) or a similar law of a foreign jurisdiction; and (ii) the nature and circumstances of a proposed, current or previous arrangement with the person’s creditors under the Bankruptcy Act 1966 (Cwlth) , part 10 or a similar law of a foreign jurisdiction; and (iii) the nature and circumstances of a proposed, current or previous external administration of a corporation, partnership or other entity of which the person is or was a director, secretary or partner or in whose management, direction or control the person is or was involved.
(i) the nature and circumstances of the person having been a bankrupt or taking advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966 (Cwlth) or a similar law of a foreign jurisdiction; and
(ii) the nature and circumstances of a proposed, current or previous arrangement with the person’s creditors under the Bankruptcy Act 1966 (Cwlth) , part 10 or a similar law of a foreign jurisdiction; and
(iii) the nature and circumstances of a proposed, current or previous external administration of a corporation, partnership or other entity of which the person is or was a director, secretary or partner or in whose management, direction or control the person is or was involved.
(i) the nature and circumstances of the person having been a bankrupt or taking advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966 (Cwlth) or a similar law of a foreign jurisdiction; and
(ii) the nature and circumstances of a proposed, current or previous arrangement with the person’s creditors under the Bankruptcy Act 1966 (Cwlth) , part 10 or a similar law of a foreign jurisdiction; and
(iii) the nature and circumstances of a proposed, current or previous external administration of a corporation, partnership or other entity of which the person is or was a director, secretary or partner or in whose management, direction or control the person is or was involved.
(a) an attorney under a power of attorney; or
(b) an attorney under an advance health directive or similar document under the law of another jurisdiction.
(a) a general power of attorney made under the Powers of Attorney Act 1998 ; or
(b) an enduring power of attorney; or
(c) a power of attorney made otherwise than under the Powers of Attorney Act 1998 , whether before or after its commencement; or
(d) a similar document under the law of another jurisdiction.
sec.16
Advice from proposed appointee about appropriateness and competence
sec.16 Advice from proposed appointee about appropriateness and competence
An individual who has agreed to a proposed appointment (a proposed appointee ) must advise the tribunal before the tribunal makes an order appointing the proposed appointee whether he or she—
is under 18 years; or
is, or has ever been, a paid carer for the adult; or
is a health provider for the adult; or
has any criminal history, whether in Queensland or elsewhere; or
has been, whether in Queensland or elsewhere, refused, or removed from, appointment as a guardian, administrator, attorney or other person making a decision for someone else; or
for a proposed appointment as administrator—
is bankrupt or taking advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966 (Cwlth) or a similar law of a foreign jurisdiction; or
has ever been bankrupt or taken advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966 (Cwlth) or a similar law of a foreign jurisdiction; or
is proposing to make, or has ever made, an arrangement with his or her creditors under the Bankruptcy Act 1966 (Cwlth) , part 10 or a similar law of a foreign jurisdiction; or
is or was a director, secretary or partner, or is or was involved in the management, direction or control of a corporation, partnership or other entity that is proposing to be, is or has been, under external administration.
Maximum penalty—40 penalty units.
The proposed appointee must also advise the tribunal of any likely conflict between—
the duty of the proposed appointee if appointed as guardian or administrator towards the adult; and
either—
the interests of the proposed appointee or a person in a close personal or business relationship with the proposed appointee; or
another duty of the proposed appointee as guardian or administrator for another person.
Maximum penalty—40 penalty units.
The proposed appointee must give the advice by statutory declaration or on oath or affirmation if required by the tribunal.
Maximum penalty—40 penalty units.
In this section—
attorney means—
an attorney under a power of attorney; or
an attorney under an advance health directive or similar document under the law of another jurisdiction.
power of attorney means—
a general power of attorney made under the Powers of Attorney Act 1998 ; or
an enduring power of attorney; or
a power of attorney made otherwise than under the Powers of Attorney Act 1998 , whether before or after its commencement; or
a similar document under the law of another jurisdiction.
s 16 amd 2019 No. 9 s 12
(sec.16-ssec.1) An individual who has agreed to a proposed appointment (a proposed appointee ) must advise the tribunal before the tribunal makes an order appointing the proposed appointee whether he or she— is under 18 years; or is, or has ever been, a paid carer for the adult; or is a health provider for the adult; or has any criminal history, whether in Queensland or elsewhere; or has been, whether in Queensland or elsewhere, refused, or removed from, appointment as a guardian, administrator, attorney or other person making a decision for someone else; or for a proposed appointment as administrator— is bankrupt or taking advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966 (Cwlth) or a similar law of a foreign jurisdiction; or has ever been bankrupt or taken advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966 (Cwlth) or a similar law of a foreign jurisdiction; or is proposing to make, or has ever made, an arrangement with his or her creditors under the Bankruptcy Act 1966 (Cwlth) , part 10 or a similar law of a foreign jurisdiction; or is or was a director, secretary or partner, or is or was involved in the management, direction or control of a corporation, partnership or other entity that is proposing to be, is or has been, under external administration. Maximum penalty—40 penalty units.
(sec.16-ssec.2) The proposed appointee must also advise the tribunal of any likely conflict between— the duty of the proposed appointee if appointed as guardian or administrator towards the adult; and either— the interests of the proposed appointee or a person in a close personal or business relationship with the proposed appointee; or another duty of the proposed appointee as guardian or administrator for another person. Maximum penalty—40 penalty units.
(sec.16-ssec.3) The proposed appointee must give the advice by statutory declaration or on oath or affirmation if required by the tribunal. Maximum penalty—40 penalty units.
(sec.16-ssec.4) In this section— attorney means— an attorney under a power of attorney; or an attorney under an advance health directive or similar document under the law of another jurisdiction. power of attorney means— a general power of attorney made under the Powers of Attorney Act 1998 ; or an enduring power of attorney; or a power of attorney made otherwise than under the Powers of Attorney Act 1998 , whether before or after its commencement; or a similar document under the law of another jurisdiction.
(a) is under 18 years; or
(b) is, or has ever been, a paid carer for the adult; or
(c) is a health provider for the adult; or
(d) has any criminal history, whether in Queensland or elsewhere; or
(e) has been, whether in Queensland or elsewhere, refused, or removed from, appointment as a guardian, administrator, attorney or other person making a decision for someone else; or
(f) for a proposed appointment as administrator— (i) is bankrupt or taking advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966 (Cwlth) or a similar law of a foreign jurisdiction; or (ii) has ever been bankrupt or taken advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966 (Cwlth) or a similar law of a foreign jurisdiction; or (iii) is proposing to make, or has ever made, an arrangement with his or her creditors under the Bankruptcy Act 1966 (Cwlth) , part 10 or a similar law of a foreign jurisdiction; or (iv) is or was a director, secretary or partner, or is or was involved in the management, direction or control of a corporation, partnership or other entity that is proposing to be, is or has been, under external administration.
(i) is bankrupt or taking advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966 (Cwlth) or a similar law of a foreign jurisdiction; or
(ii) has ever been bankrupt or taken advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966 (Cwlth) or a similar law of a foreign jurisdiction; or
(iii) is proposing to make, or has ever made, an arrangement with his or her creditors under the Bankruptcy Act 1966 (Cwlth) , part 10 or a similar law of a foreign jurisdiction; or
(iv) is or was a director, secretary or partner, or is or was involved in the management, direction or control of a corporation, partnership or other entity that is proposing to be, is or has been, under external administration.
(i) is bankrupt or taking advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966 (Cwlth) or a similar law of a foreign jurisdiction; or
(ii) has ever been bankrupt or taken advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966 (Cwlth) or a similar law of a foreign jurisdiction; or
(iii) is proposing to make, or has ever made, an arrangement with his or her creditors under the Bankruptcy Act 1966 (Cwlth) , part 10 or a similar law of a foreign jurisdiction; or
(iv) is or was a director, secretary or partner, or is or was involved in the management, direction or control of a corporation, partnership or other entity that is proposing to be, is or has been, under external administration.
(a) the duty of the proposed appointee if appointed as guardian or administrator towards the adult; and
(b) either— (i) the interests of the proposed appointee or a person in a close personal or business relationship with the proposed appointee; or (ii) another duty of the proposed appointee as guardian or administrator for another person.
(i) the interests of the proposed appointee or a person in a close personal or business relationship with the proposed appointee; or
(ii) another duty of the proposed appointee as guardian or administrator for another person.
(i) the interests of the proposed appointee or a person in a close personal or business relationship with the proposed appointee; or
(ii) another duty of the proposed appointee as guardian or administrator for another person.
(a) an attorney under a power of attorney; or
(b) an attorney under an advance health directive or similar document under the law of another jurisdiction.
(a) a general power of attorney made under the Powers of Attorney Act 1998 ; or
(b) an enduring power of attorney; or
(c) a power of attorney made otherwise than under the Powers of Attorney Act 1998 , whether before or after its commencement; or
(d) a similar document under the law of another jurisdiction.
sec.17
Guardian or administrator to update advice about appropriateness and competence
sec.17 Guardian or administrator to update advice about appropriateness and competence
After appointment, a guardian or administrator is under a continuing duty to advise the tribunal of anything of which the guardian or administrator—
has not previously advised the tribunal; and
would be required to advise the tribunal under section 16 if the tribunal were considering whether to appoint the guardian or administrator.
Maximum penalty—40 penalty units.
The guardian or administrator must give the advice by statutory declaration or on oath or affirmation if required by the tribunal.
Maximum penalty—40 penalty units.
(sec.17-ssec.1) After appointment, a guardian or administrator is under a continuing duty to advise the tribunal of anything of which the guardian or administrator— has not previously advised the tribunal; and would be required to advise the tribunal under section 16 if the tribunal were considering whether to appoint the guardian or administrator. Maximum penalty—40 penalty units.
(sec.17-ssec.2) The guardian or administrator must give the advice by statutory declaration or on oath or affirmation if required by the tribunal. Maximum penalty—40 penalty units.
(a) has not previously advised the tribunal; and
(b) would be required to advise the tribunal under section 16 if the tribunal were considering whether to appoint the guardian or administrator.
sec.18
Inquiries about appropriateness and competence
sec.18 Inquiries about appropriateness and competence
The tribunal, or the registrar acting either at the direction of the tribunal or on the registrar’s own initiative, may make inquiries about the appropriateness and competence to perform functions and exercise powers under an appointment order of a person who has agreed to a proposed appointment or who is a guardian or administrator.
If asked by the tribunal or registrar, the commissioner of the police service must give the tribunal or registrar a written report about the criminal history of—
a person who has agreed to a proposed appointment; or
a person who is a guardian or administrator; or
if the person mentioned in paragraph (a) or (b) is a corporation—a director, secretary or person involved in the management, direction or control of the corporation.
If the registrar makes the inquiries, the registrar must advise the tribunal of the results of the inquiries before the tribunal makes an appointment order.
s 18 amd 2004 No. 43 s 45
(sec.18-ssec.1) The tribunal, or the registrar acting either at the direction of the tribunal or on the registrar’s own initiative, may make inquiries about the appropriateness and competence to perform functions and exercise powers under an appointment order of a person who has agreed to a proposed appointment or who is a guardian or administrator.
(sec.18-ssec.2) If asked by the tribunal or registrar, the commissioner of the police service must give the tribunal or registrar a written report about the criminal history of— a person who has agreed to a proposed appointment; or a person who is a guardian or administrator; or if the person mentioned in paragraph (a) or (b) is a corporation—a director, secretary or person involved in the management, direction or control of the corporation.
(sec.18-ssec.3) If the registrar makes the inquiries, the registrar must advise the tribunal of the results of the inquiries before the tribunal makes an appointment order.
(a) a person who has agreed to a proposed appointment; or
(b) a person who is a guardian or administrator; or
(c) if the person mentioned in paragraph (a) or (b) is a corporation—a director, secretary or person involved in the management, direction or control of the corporation.
sec.19
Comply with other tribunal requirement
sec.19 Comply with other tribunal requirement
The tribunal may impose a requirement, including a requirement about giving security, on a guardian or administrator or a person who is to become a guardian or administrator.
A guardian or administrator or person who is to become a guardian or administrator must comply with the requirement.
Maximum penalty—200 penalty units.
(sec.19-ssec.1) The tribunal may impose a requirement, including a requirement about giving security, on a guardian or administrator or a person who is to become a guardian or administrator.
(sec.19-ssec.2) A guardian or administrator or person who is to become a guardian or administrator must comply with the requirement. Maximum penalty—200 penalty units.
sec.20
Financial management plan
sec.20 Financial management plan
Unless the tribunal orders otherwise, a person who agrees to a proposed appointment as an administrator must give a financial management plan to the tribunal, or its appropriately qualified nominee, for approval.
The tribunal, or its appropriately qualified nominee, may approve a financial management plan.
In this section—
appropriately qualified , for a nominee in relation to a financial management plan, means having the qualifications or experience appropriate to approve the plan.
s 20 amd 2003 No. 87 s 4 ; 2008 No. 54 s 4
(sec.20-ssec.1) Unless the tribunal orders otherwise, a person who agrees to a proposed appointment as an administrator must give a financial management plan to the tribunal, or its appropriately qualified nominee, for approval.
(sec.20-ssec.2) The tribunal, or its appropriately qualified nominee, may approve a financial management plan.
(sec.20-ssec.3) In this section— appropriately qualified , for a nominee in relation to a financial management plan, means having the qualifications or experience appropriate to approve the plan.
sec.21
Advice to registrar of titles if appointment concerns land
sec.21 Advice to registrar of titles if appointment concerns land
If the tribunal appoints an administrator for a matter involving an interest in land, the tribunal and the administrator must each, within 3 months of the appointment, advise the registrar of titles.
If the registrar of titles receives an advice, the registrar of titles must keep the information contained in the advice in a way that ensures a search of the relevant title reveals the order making the appointment has been made.
The administrator must pay the titles registry fee for giving the advice.
Note section 47 (Payment of expenses).
s 21 amd 2003 No. 87 s 5 ; 2019 No. 9 s 13 ; 2021 No. 12 s 148 sch 3
(sec.21-ssec.1) If the tribunal appoints an administrator for a matter involving an interest in land, the tribunal and the administrator must each, within 3 months of the appointment, advise the registrar of titles.
(sec.21-ssec.2) If the registrar of titles receives an advice, the registrar of titles must keep the information contained in the advice in a way that ensures a search of the relevant title reveals the order making the appointment has been made.
(sec.21-ssec.3) The administrator must pay the titles registry fee for giving the advice. Note section 47 (Payment of expenses).
ch.3-pt.2
Relationship between appointment and enduring document
Relationship between appointment and enduring document
sec.22
Attorney’s power subject to tribunal authorisation
sec.22 Attorney’s power subject to tribunal authorisation
This section applies if—
an adult’s enduring document gives power for a matter to an attorney; and
after the enduring document is made, the tribunal, with knowledge of the existence of the enduring document, gives the power to a guardian or an administrator.
The attorney may exercise power only to the extent authorised by the tribunal.
Subsection (2) does not apply for power for a health matter.
For health matters, see section 66 (Adult with impaired capacity—order of priority in dealing with health matter).
s 22 amd 2012 No. 37 s 51 sch
(sec.22-ssec.1) This section applies if— an adult’s enduring document gives power for a matter to an attorney; and after the enduring document is made, the tribunal, with knowledge of the existence of the enduring document, gives the power to a guardian or an administrator.
(sec.22-ssec.2) The attorney may exercise power only to the extent authorised by the tribunal.
(sec.22-ssec.3) Subsection (2) does not apply for power for a health matter. For health matters, see section 66 (Adult with impaired capacity—order of priority in dealing with health matter).
(a) an adult’s enduring document gives power for a matter to an attorney; and
(b) after the enduring document is made, the tribunal, with knowledge of the existence of the enduring document, gives the power to a guardian or an administrator.
sec.23
Appointment without knowledge of enduring document
sec.23 Appointment without knowledge of enduring document
This section applies if—
the tribunal gives power for a matter for an adult to a guardian or an administrator without knowledge of the existence of an enduring document giving power for the matter to an attorney for the adult; and
the guardian or administrator becomes aware of the existence or purported existence of the enduring document.
If the guardian or administrator becomes aware of the existence or purported existence of the enduring document, the guardian’s or administrator’s power for the matter is suspended pending review of the appointment of the guardian or administrator.
Note section 56 (Protection if unaware of change of appointee’s power).
The guardian or administrator must advise the tribunal in writing of the existence or purported existence of the enduring document as soon as practicable.
Maximum penalty—40 penalty units.
If the tribunal receives an advice under subsection (3) , the tribunal must review the appointment of the guardian or administrator.
Part 3 , division 2 applies to the review.
(sec.23-ssec.1) This section applies if— the tribunal gives power for a matter for an adult to a guardian or an administrator without knowledge of the existence of an enduring document giving power for the matter to an attorney for the adult; and the guardian or administrator becomes aware of the existence or purported existence of the enduring document.
(sec.23-ssec.2) If the guardian or administrator becomes aware of the existence or purported existence of the enduring document, the guardian’s or administrator’s power for the matter is suspended pending review of the appointment of the guardian or administrator. Note section 56 (Protection if unaware of change of appointee’s power).
(sec.23-ssec.3) The guardian or administrator must advise the tribunal in writing of the existence or purported existence of the enduring document as soon as practicable. Maximum penalty—40 penalty units.
(sec.23-ssec.4) If the tribunal receives an advice under subsection (3) , the tribunal must review the appointment of the guardian or administrator.
(sec.23-ssec.5) Part 3 , division 2 applies to the review.
(a) the tribunal gives power for a matter for an adult to a guardian or an administrator without knowledge of the existence of an enduring document giving power for the matter to an attorney for the adult; and
(b) the guardian or administrator becomes aware of the existence or purported existence of the enduring document.
sec.24
Protection if unaware of appointment
sec.24 Protection if unaware of appointment
An attorney who, without knowing power has been given by the tribunal to a guardian or administrator, purports to exercise the power does not incur any liability, either to the adult or anyone else, because of the appointment of the guardian or administrator.
A transaction between—
an attorney who purports to exercise power for a matter; and
a person who does not know power for the matter has been given to a guardian or administrator;
is, in favour of the person, as valid as if the power had not been given to the guardian or administrator.
In this section—
attorney means an attorney under an enduring document or a statutory health attorney.
know , power has been given by the tribunal, includes have reason to believe power has been given by the tribunal.
(sec.24-ssec.1) An attorney who, without knowing power has been given by the tribunal to a guardian or administrator, purports to exercise the power does not incur any liability, either to the adult or anyone else, because of the appointment of the guardian or administrator.
(sec.24-ssec.2) A transaction between— an attorney who purports to exercise power for a matter; and a person who does not know power for the matter has been given to a guardian or administrator; is, in favour of the person, as valid as if the power had not been given to the guardian or administrator.
(sec.24-ssec.3) In this section— attorney means an attorney under an enduring document or a statutory health attorney. know , power has been given by the tribunal, includes have reason to believe power has been given by the tribunal.
(a) an attorney who purports to exercise power for a matter; and
(b) a person who does not know power for the matter has been given to a guardian or administrator;
sec.25
Protection if unaware power already exercised by advance health directive
sec.25 Protection if unaware power already exercised by advance health directive
This section applies if—
an adult’s advance health directive includes a direction about a matter; and
after the advance health directive is made, but without reference to it, the tribunal gives power for the matter to a guardian.
The guardian who, without knowing a direction about the matter is included in an advance health directive, purports to exercise power for the matter does not incur any liability, either to the adult or anyone else, because of the direction being included in the advance health directive.
If—
the guardian purports to exercise power for a matter; and
without knowing a direction about the matter is included in an advance health directive, a person acts in reliance on the purported exercise of power;
the person does not incur any liability, either to the adult or anyone else, because of the direction being included in the advance health directive.
In this section—
know , a direction about a matter is included in an advance health directive, includes have reason to believe the matter is dealt with by an advance health directive.
(sec.25-ssec.1) This section applies if— an adult’s advance health directive includes a direction about a matter; and after the advance health directive is made, but without reference to it, the tribunal gives power for the matter to a guardian.
(sec.25-ssec.2) The guardian who, without knowing a direction about the matter is included in an advance health directive, purports to exercise power for the matter does not incur any liability, either to the adult or anyone else, because of the direction being included in the advance health directive.
(sec.25-ssec.3) If— the guardian purports to exercise power for a matter; and without knowing a direction about the matter is included in an advance health directive, a person acts in reliance on the purported exercise of power; the person does not incur any liability, either to the adult or anyone else, because of the direction being included in the advance health directive.
(sec.25-ssec.4) In this section— know , a direction about a matter is included in an advance health directive, includes have reason to believe the matter is dealt with by an advance health directive.
(a) an adult’s advance health directive includes a direction about a matter; and
(b) after the advance health directive is made, but without reference to it, the tribunal gives power for the matter to a guardian.
(a) the guardian purports to exercise power for a matter; and
(b) without knowing a direction about the matter is included in an advance health directive, a person acts in reliance on the purported exercise of power;
ch.3-pt.3
Changing or revoking an appointment order
Changing or revoking an appointment order
ch.3-pt.3-div.1
Revocation by appointee
Revocation by appointee
sec.26
Automatic revocation
sec.26 Automatic revocation
An appointment as a guardian or administrator for an adult for a matter ends if—
the guardian or administrator becomes a paid carer, or health provider, for the adult; or
the guardian or administrator becomes the service provider for a residential service where the adult is a resident; or
if the guardian or administrator and the adult are married when the appointment is made—the marriage is dissolved; or
if the guardian or administrator and the adult are in a civil partnership when the appointment is made—the civil partnership is terminated under the Civil Partnerships Act 2011 , part 2 , division 4 ; or
the guardian or administrator dies; or
the adult dies; or
for a guardian for a restrictive practice matter under chapter 5B —the tribunal gives a containment or seclusion approval under chapter 5B in relation to the adult.
Also, an appointment as an administrator ends if—
the administrator becomes bankrupt or insolvent; or
for an appointment made under section 12A for an adult—
a coroner makes a finding under the Coroners Act 2003 that the adult has died; or
the court makes a declaration of death for the adult or grants a person leave to swear the death of the adult; or
the adult’s death is registered under the Births, Deaths and Marriages Registration Act 2023 .
If more than 1 event mentioned in subsection (2) (b) applies for the adult, the appointment ends on the happening of the earliest event for the adult.
If an appointment as a guardian or administrator ends under subsection (1) (a) , (b) , (c) , (d) or (f) or subsection (2) , the former guardian or administrator must advise the tribunal in writing of the ending of the appointment.
If an appointment as a guardian or administrator for a matter ends under subsection (1) or (2) and the guardian or administrator was a joint guardian or administrator for the matter—
if, of the joint guardians or administrators, there is 1 remaining guardian or administrator, the remaining guardian or administrator may exercise power for the matter; and
if, of the joint guardians or administrators, there are 2 or more remaining guardians or administrators, the remaining guardians or administrators may exercise power for the matter and, if exercising power, must exercise power jointly.
In this section—
resident has the meaning given by the Residential Services (Accreditation) Act 2002 .
residential service has the meaning given by the Residential Services (Accreditation) Act 2002 .
service provider has the meaning given by the Residential Services (Accreditation) Act 2002 .
s 26 amd 2004 No. 43 s 46 ; 2008 No. 23 s 18 ; 2011 No. 46 s 58 ; 2012 No. 12 s 59 sch pts 1 – 2 ; 2012 No. 37 s 51 sch ; 2015 No. 33 s 52 (1) – (2) sch pts 1 – 2 ; 2019 No. 9 s 14 ; 2023 No. 17 s 174
(sec.26-ssec.1) An appointment as a guardian or administrator for an adult for a matter ends if— the guardian or administrator becomes a paid carer, or health provider, for the adult; or the guardian or administrator becomes the service provider for a residential service where the adult is a resident; or if the guardian or administrator and the adult are married when the appointment is made—the marriage is dissolved; or if the guardian or administrator and the adult are in a civil partnership when the appointment is made—the civil partnership is terminated under the Civil Partnerships Act 2011 , part 2 , division 4 ; or the guardian or administrator dies; or the adult dies; or for a guardian for a restrictive practice matter under chapter 5B —the tribunal gives a containment or seclusion approval under chapter 5B in relation to the adult.
(sec.26-ssec.2) Also, an appointment as an administrator ends if— the administrator becomes bankrupt or insolvent; or for an appointment made under section 12A for an adult— a coroner makes a finding under the Coroners Act 2003 that the adult has died; or the court makes a declaration of death for the adult or grants a person leave to swear the death of the adult; or the adult’s death is registered under the Births, Deaths and Marriages Registration Act 2023 .
(sec.26-ssec.2A) If more than 1 event mentioned in subsection (2) (b) applies for the adult, the appointment ends on the happening of the earliest event for the adult.
(sec.26-ssec.3) If an appointment as a guardian or administrator ends under subsection (1) (a) , (b) , (c) , (d) or (f) or subsection (2) , the former guardian or administrator must advise the tribunal in writing of the ending of the appointment.
(sec.26-ssec.4) If an appointment as a guardian or administrator for a matter ends under subsection (1) or (2) and the guardian or administrator was a joint guardian or administrator for the matter— if, of the joint guardians or administrators, there is 1 remaining guardian or administrator, the remaining guardian or administrator may exercise power for the matter; and if, of the joint guardians or administrators, there are 2 or more remaining guardians or administrators, the remaining guardians or administrators may exercise power for the matter and, if exercising power, must exercise power jointly.
(sec.26-ssec.5) In this section— resident has the meaning given by the Residential Services (Accreditation) Act 2002 . residential service has the meaning given by the Residential Services (Accreditation) Act 2002 . service provider has the meaning given by the Residential Services (Accreditation) Act 2002 .
(a) the guardian or administrator becomes a paid carer, or health provider, for the adult; or
(b) the guardian or administrator becomes the service provider for a residential service where the adult is a resident; or
(c) if the guardian or administrator and the adult are married when the appointment is made—the marriage is dissolved; or
(d) if the guardian or administrator and the adult are in a civil partnership when the appointment is made—the civil partnership is terminated under the Civil Partnerships Act 2011 , part 2 , division 4 ; or
(e) the guardian or administrator dies; or
(f) the adult dies; or
(g) for a guardian for a restrictive practice matter under chapter 5B —the tribunal gives a containment or seclusion approval under chapter 5B in relation to the adult.
(a) the administrator becomes bankrupt or insolvent; or
(b) for an appointment made under section 12A for an adult— (i) a coroner makes a finding under the Coroners Act 2003 that the adult has died; or (ii) the court makes a declaration of death for the adult or grants a person leave to swear the death of the adult; or (iii) the adult’s death is registered under the Births, Deaths and Marriages Registration Act 2023 .
(i) a coroner makes a finding under the Coroners Act 2003 that the adult has died; or
(ii) the court makes a declaration of death for the adult or grants a person leave to swear the death of the adult; or
(iii) the adult’s death is registered under the Births, Deaths and Marriages Registration Act 2023 .
(i) a coroner makes a finding under the Coroners Act 2003 that the adult has died; or
(ii) the court makes a declaration of death for the adult or grants a person leave to swear the death of the adult; or
(iii) the adult’s death is registered under the Births, Deaths and Marriages Registration Act 2023 .
(a) if, of the joint guardians or administrators, there is 1 remaining guardian or administrator, the remaining guardian or administrator may exercise power for the matter; and
(b) if, of the joint guardians or administrators, there are 2 or more remaining guardians or administrators, the remaining guardians or administrators may exercise power for the matter and, if exercising power, must exercise power jointly.
sec.27
Withdrawal with tribunal’s leave
sec.27 Withdrawal with tribunal’s leave
An appointment as a guardian or administrator for an adult for a matter ends if, with the tribunal’s leave, the guardian or administrator withdraws as guardian or administrator for the matter.
If the tribunal gives leave for a guardian or administrator to withdraw for a matter—
the tribunal may appoint someone else to replace the withdrawing person as guardian or administrator for the matter; and
for a withdrawing administrator notice of whose appointment was given to the registrar of titles under section 21 , the registrar of the tribunal must take reasonable steps to advise the registrar of titles of the withdrawal.
If the registrar of titles receives an advice of withdrawal, the registrar of titles must keep the information contained in the advice in a way that ensures a search of the relevant title reveals the withdrawal of the administrator.
The withdrawing administrator must pay the titles registry fee for giving the advice, unless the tribunal orders otherwise.
s 27 amd 2019 No. 9 s 15 ; 2021 No. 12 s 148 sch 3
(sec.27-ssec.1) An appointment as a guardian or administrator for an adult for a matter ends if, with the tribunal’s leave, the guardian or administrator withdraws as guardian or administrator for the matter.
(sec.27-ssec.2) If the tribunal gives leave for a guardian or administrator to withdraw for a matter— the tribunal may appoint someone else to replace the withdrawing person as guardian or administrator for the matter; and for a withdrawing administrator notice of whose appointment was given to the registrar of titles under section 21 , the registrar of the tribunal must take reasonable steps to advise the registrar of titles of the withdrawal.
(sec.27-ssec.3) If the registrar of titles receives an advice of withdrawal, the registrar of titles must keep the information contained in the advice in a way that ensures a search of the relevant title reveals the withdrawal of the administrator.
(sec.27-ssec.4) The withdrawing administrator must pay the titles registry fee for giving the advice, unless the tribunal orders otherwise.
(a) the tribunal may appoint someone else to replace the withdrawing person as guardian or administrator for the matter; and
(b) for a withdrawing administrator notice of whose appointment was given to the registrar of titles under section 21 , the registrar of the tribunal must take reasonable steps to advise the registrar of titles of the withdrawal.
ch.3-pt.3-div.1A
Provisions about appointment for adult who is missing person
Provisions about appointment for adult who is missing person
sec.27A
Obligation to notify tribunal of particular circumstances
sec.27A Obligation to notify tribunal of particular circumstances
This section applies to an administrator appointed for an adult under section 12A if, during the term of the appointment, the administrator becomes aware—
the adult is alive; or
the adult has died.
The administrator must, as soon as practicable after becoming aware a circumstance mentioned in subsection (1) (a) or (b) exists, notify the tribunal in writing of the circumstance.
s 27A ins 2019 No. 9 s 16
(sec.27A-ssec.1) This section applies to an administrator appointed for an adult under section 12A if, during the term of the appointment, the administrator becomes aware— the adult is alive; or the adult has died.
(sec.27A-ssec.2) The administrator must, as soon as practicable after becoming aware a circumstance mentioned in subsection (1) (a) or (b) exists, notify the tribunal in writing of the circumstance.
(a) the adult is alive; or
(b) the adult has died.
sec.27B
Tribunal must revoke order making appointment
sec.27B Tribunal must revoke order making appointment
This section applies in relation to an order appointing an administrator for an adult under section 12A .
The tribunal must revoke the order if the tribunal is satisfied—
the adult is alive; or
the adult has died; or
the adult may be presumed to be dead.
The order may be revoked by the tribunal on its own initiative or on the application of the administrator or an interested person.
s 27B ins 2019 No. 9 s 16
(sec.27B-ssec.1) This section applies in relation to an order appointing an administrator for an adult under section 12A .
(sec.27B-ssec.2) The tribunal must revoke the order if the tribunal is satisfied— the adult is alive; or the adult has died; or the adult may be presumed to be dead.
(sec.27B-ssec.3) The order may be revoked by the tribunal on its own initiative or on the application of the administrator or an interested person.
(a) the adult is alive; or
(b) the adult has died; or
(c) the adult may be presumed to be dead.
ch.3-pt.3-div.2
Change or revocation at tribunal review of appointment
Change or revocation at tribunal review of appointment
sec.28
Periodic review of appointment
sec.28 Periodic review of appointment
The tribunal must review an appointment of a guardian or administrator (other than the public trustee or a trustee company under the Trustee Companies Act 1968 )—
for an appointment made because an adult has impaired capacity for a matter but the tribunal does not consider the impaired capacity is permanent—in accordance with an order of the tribunal, but at least every 5 years; or
otherwise—at least every 5 years.
This section does not apply for a guardian for a restrictive practice matter under chapter 5B .
s 28 amd 2003 No. 87 s 6 ; 2008 No. 23 s 19
(sec.28-ssec.1) The tribunal must review an appointment of a guardian or administrator (other than the public trustee or a trustee company under the Trustee Companies Act 1968 )— for an appointment made because an adult has impaired capacity for a matter but the tribunal does not consider the impaired capacity is permanent—in accordance with an order of the tribunal, but at least every 5 years; or otherwise—at least every 5 years.
(sec.28-ssec.2) This section does not apply for a guardian for a restrictive practice matter under chapter 5B .
(a) for an appointment made because an adult has impaired capacity for a matter but the tribunal does not consider the impaired capacity is permanent—in accordance with an order of the tribunal, but at least every 5 years; or
(b) otherwise—at least every 5 years.
sec.29
Other review of appointment
sec.29 Other review of appointment
The tribunal may review an appointment of a guardian or administrator for an adult at any time—
on its own initiative; or
for a guardian (other than a guardian for a restrictive practice matter under chapter 5B ) or an administrator—on the application of any of the following—
the adult;
an interested person for the adult;
the public trustee;
a trustee company under the Trustee Companies Act 1968 ; or
for a guardian for a restrictive practice matter under chapter 5B —on the application of any of the following—
the adult;
an interested person for the adult;
a relevant service provider providing disability services to the adult;
the chief executive (disability services);
the public guardian;
if the adult is subject to a forensic order, treatment support order or treatment authority under the Mental Health Act 2016 —the chief psychiatrist;
if the adult is a forensic disability client—the director of forensic disability.
However, the tribunal must review the appointment of a guardian for a restrictive practice matter under chapter 5B at least once before the term of the appointment ends.
s 29 sub 2003 No. 87 s 7
amd 2008 No. 23 s 20 ; 2009 No. 48 s 216 ; 2011 No. 13 s 192 ; 2014 No. 26 s 240 (1) ; 2016 No. 5 s 923 sch 4 ; 2019 No. 19 s 81 sch 1
(sec.29-ssec.1) The tribunal may review an appointment of a guardian or administrator for an adult at any time— on its own initiative; or for a guardian (other than a guardian for a restrictive practice matter under chapter 5B ) or an administrator—on the application of any of the following— the adult; an interested person for the adult; the public trustee; a trustee company under the Trustee Companies Act 1968 ; or for a guardian for a restrictive practice matter under chapter 5B —on the application of any of the following— the adult; an interested person for the adult; a relevant service provider providing disability services to the adult; the chief executive (disability services); the public guardian; if the adult is subject to a forensic order, treatment support order or treatment authority under the Mental Health Act 2016 —the chief psychiatrist; if the adult is a forensic disability client—the director of forensic disability.
(sec.29-ssec.2) However, the tribunal must review the appointment of a guardian for a restrictive practice matter under chapter 5B at least once before the term of the appointment ends.
(a) on its own initiative; or
(b) for a guardian (other than a guardian for a restrictive practice matter under chapter 5B ) or an administrator—on the application of any of the following— (i) the adult; (ii) an interested person for the adult; (iii) the public trustee; (iv) a trustee company under the Trustee Companies Act 1968 ; or
(i) the adult;
(ii) an interested person for the adult;
(iii) the public trustee;
(iv) a trustee company under the Trustee Companies Act 1968 ; or
(c) for a guardian for a restrictive practice matter under chapter 5B —on the application of any of the following— (i) the adult; (ii) an interested person for the adult; (iii) a relevant service provider providing disability services to the adult; (iv) the chief executive (disability services); (v) the public guardian; (vi) if the adult is subject to a forensic order, treatment support order or treatment authority under the Mental Health Act 2016 —the chief psychiatrist; (vii) if the adult is a forensic disability client—the director of forensic disability.
(i) the adult;
(ii) an interested person for the adult;
(iii) a relevant service provider providing disability services to the adult;
(iv) the chief executive (disability services);
(v) the public guardian;
(vi) if the adult is subject to a forensic order, treatment support order or treatment authority under the Mental Health Act 2016 —the chief psychiatrist;
(vii) if the adult is a forensic disability client—the director of forensic disability.
(i) the adult;
(ii) an interested person for the adult;
(iii) the public trustee;
(iv) a trustee company under the Trustee Companies Act 1968 ; or
(i) the adult;
(ii) an interested person for the adult;
(iii) a relevant service provider providing disability services to the adult;
(iv) the chief executive (disability services);
(v) the public guardian;
(vi) if the adult is subject to a forensic order, treatment support order or treatment authority under the Mental Health Act 2016 —the chief psychiatrist;
(vii) if the adult is a forensic disability client—the director of forensic disability.
sec.30
Guardian or administrator to update advice about appropriateness and competence
sec.30 Guardian or administrator to update advice about appropriateness and competence
For a review of an appointment, the tribunal may require the guardian or administrator to advise the tribunal of anything of which the guardian or administrator—
has not previously advised the tribunal; and
would be required to advise the tribunal under section 16 if the tribunal were considering whether to appoint the guardian or administrator.
The guardian or administrator must give the advice by statutory declaration or on oath or affirmation if required by the tribunal.
Maximum penalty—40 penalty units.
(sec.30-ssec.1) For a review of an appointment, the tribunal may require the guardian or administrator to advise the tribunal of anything of which the guardian or administrator— has not previously advised the tribunal; and would be required to advise the tribunal under section 16 if the tribunal were considering whether to appoint the guardian or administrator.
(sec.30-ssec.2) The guardian or administrator must give the advice by statutory declaration or on oath or affirmation if required by the tribunal. Maximum penalty—40 penalty units.
(a) has not previously advised the tribunal; and
(b) would be required to advise the tribunal under section 16 if the tribunal were considering whether to appoint the guardian or administrator.
sec.31
Appointment review process
sec.31 Appointment review process
The tribunal may conduct a review of an appointment of a guardian or administrator (an appointee ) for an adult in the way it considers appropriate.
At the end of the review, the tribunal must revoke its order making the appointment unless it is satisfied it would make an appointment if a new application for an appointment were to be made.
If the tribunal is satisfied there are appropriate grounds for an appointment to continue, it may either—
continue its order making the appointment; or
change its order making the appointment, including, for example, by—
changing the terms of the appointment; or
removing an appointee; or
making a new appointment.
However, the tribunal may make an order removing an appointee, other than the public guardian, only if the tribunal considers—
the appointee is no longer competent; or
another person is more appropriate for appointment.
An appointee is no longer competent if, for example—
a relevant interest of the adult has not been, or is not being, adequately protected; or
the appointee has neglected the appointee’s duties or abused the appointee’s powers, whether generally or in relation to a specific power; or
the appointee is an administrator appointed for a matter involving an interest in land and the appointee fails to advise the registrar of titles of the appointment as required under section 21 (1) ; or
the appointee has otherwise contravened this Act.
The tribunal may make an order removing the public guardian as an appointee if there is an appropriate person mentioned in section 14 (1) available for appointment.
The tribunal may include in its order changing or revoking the appointment of an administrator a provision as to who must pay the titles registry fee for giving or withdrawing the advice of the change or revocation.
s 31 amd 2003 No. 87 s 8 ; 2019 No. 9 s 17 ; 2021 No. 12 s 148 sch 3
(sec.31-ssec.1) The tribunal may conduct a review of an appointment of a guardian or administrator (an appointee ) for an adult in the way it considers appropriate.
(sec.31-ssec.2) At the end of the review, the tribunal must revoke its order making the appointment unless it is satisfied it would make an appointment if a new application for an appointment were to be made.
(sec.31-ssec.3) If the tribunal is satisfied there are appropriate grounds for an appointment to continue, it may either— continue its order making the appointment; or change its order making the appointment, including, for example, by— changing the terms of the appointment; or removing an appointee; or making a new appointment.
(sec.31-ssec.4) However, the tribunal may make an order removing an appointee, other than the public guardian, only if the tribunal considers— the appointee is no longer competent; or another person is more appropriate for appointment.
(sec.31-ssec.5) An appointee is no longer competent if, for example— a relevant interest of the adult has not been, or is not being, adequately protected; or the appointee has neglected the appointee’s duties or abused the appointee’s powers, whether generally or in relation to a specific power; or the appointee is an administrator appointed for a matter involving an interest in land and the appointee fails to advise the registrar of titles of the appointment as required under section 21 (1) ; or the appointee has otherwise contravened this Act.
(sec.31-ssec.6) The tribunal may make an order removing the public guardian as an appointee if there is an appropriate person mentioned in section 14 (1) available for appointment.
(sec.31-ssec.7) The tribunal may include in its order changing or revoking the appointment of an administrator a provision as to who must pay the titles registry fee for giving or withdrawing the advice of the change or revocation.
(a) continue its order making the appointment; or
(b) change its order making the appointment, including, for example, by— (i) changing the terms of the appointment; or (ii) removing an appointee; or (iii) making a new appointment.
(i) changing the terms of the appointment; or
(ii) removing an appointee; or
(iii) making a new appointment.
(i) changing the terms of the appointment; or
(ii) removing an appointee; or
(iii) making a new appointment.
(a) the appointee is no longer competent; or
(b) another person is more appropriate for appointment.
(a) a relevant interest of the adult has not been, or is not being, adequately protected; or
(b) the appointee has neglected the appointee’s duties or abused the appointee’s powers, whether generally or in relation to a specific power; or
(c) the appointee is an administrator appointed for a matter involving an interest in land and the appointee fails to advise the registrar of titles of the appointment as required under section 21 (1) ; or
(d) the appointee has otherwise contravened this Act.
sec.32
Tribunal to advise of change, revocation or ending of appointment
sec.32 Tribunal to advise of change, revocation or ending of appointment
This section applies if—
the tribunal changes or revokes the appointment for an adult of a guardian or administrator; or
the tribunal is given advice of the ending of an appointment under section 26 or 57 .
The registrar of the tribunal must take reasonable steps to advise the adult and any remaining guardians and administrators of the change, revocation or ending of the appointment.
s 32 sub 2003 No. 87 s 9
(sec.32-ssec.1) This section applies if— the tribunal changes or revokes the appointment for an adult of a guardian or administrator; or the tribunal is given advice of the ending of an appointment under section 26 or 57 .
(sec.32-ssec.2) The registrar of the tribunal must take reasonable steps to advise the adult and any remaining guardians and administrators of the change, revocation or ending of the appointment.
(a) the tribunal changes or revokes the appointment for an adult of a guardian or administrator; or
(b) the tribunal is given advice of the ending of an appointment under section 26 or 57 .
sec.32A
Additional requirements if change, revocation or ending of appointment and interest in land involved
sec.32A Additional requirements if change, revocation or ending of appointment and interest in land involved
This section applies if—
an administrator was appointed for a matter involving an interest in land; and
either—
the tribunal changes or revokes the appointment; or
the tribunal is given advice of the ending of the appointment under section 26 or 57 .
The registrar of the tribunal and any remaining administrator appointed for a matter involving an interest in land must, within 3 months of the change, revocation or ending of the appointment, advise the registrar of titles of the change, revocation or ending of the appointment.
If the registrar of titles receives an advice, the registrar of titles must keep the information contained in the advice in a way that ensures a search of the relevant title reveals the order changing or revoking the appointment has been made or the advice mentioned in subsection (1) (b) (ii) has been given.
s 32A ins 2003 No. 87 s 9
amd 2019 No. 9 s 18
(sec.32A-ssec.1) This section applies if— an administrator was appointed for a matter involving an interest in land; and either— the tribunal changes or revokes the appointment; or the tribunal is given advice of the ending of the appointment under section 26 or 57 .
(sec.32A-ssec.2) The registrar of the tribunal and any remaining administrator appointed for a matter involving an interest in land must, within 3 months of the change, revocation or ending of the appointment, advise the registrar of titles of the change, revocation or ending of the appointment.
(sec.32A-ssec.3) If the registrar of titles receives an advice, the registrar of titles must keep the information contained in the advice in a way that ensures a search of the relevant title reveals the order changing or revoking the appointment has been made or the advice mentioned in subsection (1) (b) (ii) has been given.
(a) an administrator was appointed for a matter involving an interest in land; and
(b) either— (i) the tribunal changes or revokes the appointment; or (ii) the tribunal is given advice of the ending of the appointment under section 26 or 57 .
(i) the tribunal changes or revokes the appointment; or
(ii) the tribunal is given advice of the ending of the appointment under section 26 or 57 .
(i) the tribunal changes or revokes the appointment; or
(ii) the tribunal is given advice of the ending of the appointment under section 26 or 57 .
ch.3-pt.3-div.3
Directions
Directions
sec.32B
Directions to former guardian or administrator
sec.32B Directions to former guardian or administrator
This section applies if an appointment as a guardian or administrator ends under section 26 , 27 or 31 .
The tribunal may give directions to the former guardian or administrator that the tribunal considers necessary because of the ending of the appointment.
The tribunal may give the directions to the former guardian or administrator—
if the appointment ends under section 27 —when the tribunal gives leave to withdraw as guardian or administrator for a matter; or
if the appointment ends under section 31 —when the tribunal revokes the order that made the appointment or makes an order removing the guardian or administrator; or
in all cases—at any hearing of a proceeding relating to the adult for whom the person was formerly a guardian or administrator.
However, the directions may relate only to a matter for which the former guardian or administrator was appointed immediately before the appointment ends.
s 32B ins 2007 No. 37 s 76
(sec.32B-ssec.1) This section applies if an appointment as a guardian or administrator ends under section 26 , 27 or 31 .
(sec.32B-ssec.2) The tribunal may give directions to the former guardian or administrator that the tribunal considers necessary because of the ending of the appointment.
(sec.32B-ssec.3) The tribunal may give the directions to the former guardian or administrator— if the appointment ends under section 27 —when the tribunal gives leave to withdraw as guardian or administrator for a matter; or if the appointment ends under section 31 —when the tribunal revokes the order that made the appointment or makes an order removing the guardian or administrator; or in all cases—at any hearing of a proceeding relating to the adult for whom the person was formerly a guardian or administrator.
(sec.32B-ssec.4) However, the directions may relate only to a matter for which the former guardian or administrator was appointed immediately before the appointment ends.
(a) if the appointment ends under section 27 —when the tribunal gives leave to withdraw as guardian or administrator for a matter; or
(b) if the appointment ends under section 31 —when the tribunal revokes the order that made the appointment or makes an order removing the guardian or administrator; or
(c) in all cases—at any hearing of a proceeding relating to the adult for whom the person was formerly a guardian or administrator.
ch.4-pt.1
General functions and powers of guardian or administrator
General functions and powers of guardian or administrator
sec.33
Power of guardian or administrator
sec.33 Power of guardian or administrator
Unless the tribunal orders otherwise, a guardian is authorised to do, in accordance with the terms of the guardian’s appointment, anything in relation to a personal matter that the adult could have done if the adult had capacity for the matter when the power is exercised.
Unless the tribunal orders otherwise, an administrator is authorised to do, in accordance with the terms of the administrator’s appointment, anything in relation to a financial matter that the adult could have done if the adult had capacity for the matter when the power is exercised.
For a guardian for a restrictive practice matter under chapter 5B , this section applies subject to sections 80ZE and 80ZF .
s 33 amd 2008 No. 23 s 21
(sec.33-ssec.1) Unless the tribunal orders otherwise, a guardian is authorised to do, in accordance with the terms of the guardian’s appointment, anything in relation to a personal matter that the adult could have done if the adult had capacity for the matter when the power is exercised.
(sec.33-ssec.2) Unless the tribunal orders otherwise, an administrator is authorised to do, in accordance with the terms of the administrator’s appointment, anything in relation to a financial matter that the adult could have done if the adult had capacity for the matter when the power is exercised.
(sec.33-ssec.3) For a guardian for a restrictive practice matter under chapter 5B , this section applies subject to sections 80ZE and 80ZF .
sec.34
Apply principles
sec.34 Apply principles
A guardian or administrator must apply the general principles.
See section 11B .
However, an administrator appointed under section 12A is not required to apply general principles 1, 3, 4, 7, 8 and 10(1) to (3) and (5).
In making a health care decision, a guardian must also apply the health care principles.
s 34 amd 2012 No. 37 s 51 sch ; 2019 No. 9 s 19
(sec.34-ssec.1) A guardian or administrator must apply the general principles. See section 11B .
(sec.34-ssec.2) However, an administrator appointed under section 12A is not required to apply general principles 1, 3, 4, 7, 8 and 10(1) to (3) and (5).
(sec.34-ssec.3) In making a health care decision, a guardian must also apply the health care principles.
sec.35
Act honestly and with reasonable diligence
sec.35 Act honestly and with reasonable diligence
A guardian or administrator who may exercise power for an adult must exercise the power honestly and with reasonable diligence to protect the adult’s interests.
Maximum penalty—200 penalty units.
sec.36
Act as required by terms of tribunal order
sec.36 Act as required by terms of tribunal order
A guardian or administrator who may exercise power for an adult must, when exercising the power, exercise it as required by the terms of any order of the tribunal.
Maximum penalty—200 penalty units.
sec.37
Avoid conflict transaction
sec.37 Avoid conflict transaction
An administrator for an adult may enter into a conflict transaction only if the tribunal has authorised the transaction, conflict transactions of that type or conflict transactions generally.
See section 152 for the authorisation of conflict transactions by the tribunal.
A conflict transaction is a transaction in which there may be conflict, or which results in conflict, between—
the duty of an administrator towards the adult; and
either—
the interests of the administrator or a person in a close personal or business relationship with the administrator; or
another duty of the administrator.
A conflict transaction happens if an adult’s administrator buys the adult’s car.
A conflict transaction happens if an adult’s administrator lends the adult’s money to a close friend of the administrator.
A conflict transaction happens if an adult’s administrator rents the adult’s residential property to the administrator or a relative of the administrator.
A conflict transaction happens if an adult’s administrator uses the adult’s money to pay the personal expenses of the administrator, including, for example, the administrator’s personal travel expenses.
A conflict transaction happens if an adult’s administrator buys the adult’s house.
A conflict transaction does not happen if an adult’s administrator is acting under section 55 to maintain the adult’s dependants.
However, a transaction is not a conflict transaction merely because—
the administrator is related to the adult; or
the administrator may be a beneficiary of the adult’s estate on the adult’s death; or
by the transaction the administrator in the administrator’s own right and on behalf of the adult—
deals with an interest in property jointly held; or
acquires a joint interest in property; or
obtains a loan or gives a guarantee or indemnity in relation to a transaction mentioned in subparagraph (i) or (ii) .
Also, to remove any doubt, it is declared that the making of a gift or donation under section 54 is not a conflict transaction.
A conflict transaction between an administrator and a person who does not know, or have reason to believe, the transaction is a conflict transaction is, in favour of the person, as valid as if the transaction were not a conflict transaction.
In this section—
joint interest includes an interest as a joint tenant or tenant in common.
s 37 amd 2019 No. 9 s 20
(sec.37-ssec.1) An administrator for an adult may enter into a conflict transaction only if the tribunal has authorised the transaction, conflict transactions of that type or conflict transactions generally. See section 152 for the authorisation of conflict transactions by the tribunal.
(sec.37-ssec.2) A conflict transaction is a transaction in which there may be conflict, or which results in conflict, between— the duty of an administrator towards the adult; and either— the interests of the administrator or a person in a close personal or business relationship with the administrator; or another duty of the administrator. A conflict transaction happens if an adult’s administrator buys the adult’s car. A conflict transaction happens if an adult’s administrator lends the adult’s money to a close friend of the administrator. A conflict transaction happens if an adult’s administrator rents the adult’s residential property to the administrator or a relative of the administrator. A conflict transaction happens if an adult’s administrator uses the adult’s money to pay the personal expenses of the administrator, including, for example, the administrator’s personal travel expenses. A conflict transaction happens if an adult’s administrator buys the adult’s house. A conflict transaction does not happen if an adult’s administrator is acting under section 55 to maintain the adult’s dependants.
(sec.37-ssec.3) However, a transaction is not a conflict transaction merely because— the administrator is related to the adult; or the administrator may be a beneficiary of the adult’s estate on the adult’s death; or by the transaction the administrator in the administrator’s own right and on behalf of the adult— deals with an interest in property jointly held; or acquires a joint interest in property; or obtains a loan or gives a guarantee or indemnity in relation to a transaction mentioned in subparagraph (i) or (ii) .
(sec.37-ssec.4) Also, to remove any doubt, it is declared that the making of a gift or donation under section 54 is not a conflict transaction.
(sec.37-ssec.5) A conflict transaction between an administrator and a person who does not know, or have reason to believe, the transaction is a conflict transaction is, in favour of the person, as valid as if the transaction were not a conflict transaction.
(sec.37-ssec.6) In this section— joint interest includes an interest as a joint tenant or tenant in common.
(a) the duty of an administrator towards the adult; and
(b) either— (i) the interests of the administrator or a person in a close personal or business relationship with the administrator; or (ii) another duty of the administrator.
(i) the interests of the administrator or a person in a close personal or business relationship with the administrator; or
(ii) another duty of the administrator.
(i) the interests of the administrator or a person in a close personal or business relationship with the administrator; or
(ii) another duty of the administrator.
1 A conflict transaction happens if an adult’s administrator buys the adult’s car.
2 A conflict transaction happens if an adult’s administrator lends the adult’s money to a close friend of the administrator.
3 A conflict transaction happens if an adult’s administrator rents the adult’s residential property to the administrator or a relative of the administrator.
4 A conflict transaction happens if an adult’s administrator uses the adult’s money to pay the personal expenses of the administrator, including, for example, the administrator’s personal travel expenses.
5 A conflict transaction happens if an adult’s administrator buys the adult’s house.
6 A conflict transaction does not happen if an adult’s administrator is acting under section 55 to maintain the adult’s dependants.
(a) the administrator is related to the adult; or
(b) the administrator may be a beneficiary of the adult’s estate on the adult’s death; or
(c) by the transaction the administrator in the administrator’s own right and on behalf of the adult— (i) deals with an interest in property jointly held; or (ii) acquires a joint interest in property; or (iii) obtains a loan or gives a guarantee or indemnity in relation to a transaction mentioned in subparagraph (i) or (ii) .
(i) deals with an interest in property jointly held; or
(ii) acquires a joint interest in property; or
(iii) obtains a loan or gives a guarantee or indemnity in relation to a transaction mentioned in subparagraph (i) or (ii) .
(i) deals with an interest in property jointly held; or
(ii) acquires a joint interest in property; or
(iii) obtains a loan or gives a guarantee or indemnity in relation to a transaction mentioned in subparagraph (i) or (ii) .
sec.38
Multiple guardians or administrators are joint if not otherwise stated
sec.38 Multiple guardians or administrators are joint if not otherwise stated
Two or more guardians or administrators for a matter are appointed as joint guardians or joint administrators for the matter if the tribunal does not order otherwise.
sec.39
Act together with joint guardians or administrators
sec.39 Act together with joint guardians or administrators
Guardians or administrators for an adult who may exercise power for a matter jointly must exercise the power unanimously.
If it is impracticable or impossible to exercise the power unanimously, 1 or more of the guardians or administrators, or another interested person for the adult, may apply for directions to the tribunal.
(sec.39-ssec.1) Guardians or administrators for an adult who may exercise power for a matter jointly must exercise the power unanimously.
(sec.39-ssec.2) If it is impracticable or impossible to exercise the power unanimously, 1 or more of the guardians or administrators, or another interested person for the adult, may apply for directions to the tribunal.
sec.40
Consult with adult’s other appointees or attorneys
sec.40 Consult with adult’s other appointees or attorneys
If there are 2 or more persons who are guardian, administrator or attorney for an adult, the persons must consult with one another on a regular basis to ensure the adult’s interests are not prejudiced by a breakdown in communication between them.
However, failure to comply with subsection (1) does not affect the validity of an exercise of power by a guardian, administrator or attorney.
In this section—
attorney means an attorney under an enduring document or a statutory health attorney.
(sec.40-ssec.1) If there are 2 or more persons who are guardian, administrator or attorney for an adult, the persons must consult with one another on a regular basis to ensure the adult’s interests are not prejudiced by a breakdown in communication between them.
(sec.40-ssec.2) However, failure to comply with subsection (1) does not affect the validity of an exercise of power by a guardian, administrator or attorney.
(sec.40-ssec.3) In this section— attorney means an attorney under an enduring document or a statutory health attorney.
sec.41
Disagreement about matter other than health matter
sec.41 Disagreement about matter other than health matter
If—
a guardian, administrator or attorney for an adult disagrees with another person who is a guardian, administrator or attorney for the adult about the way power for a matter, other than a health matter, should be exercised; and
the disagreement can not be resolved by mediation by the public guardian;
the public guardian or any person mentioned in paragraph (a) may apply for directions to the tribunal.
In this section—
attorney means an attorney under an enduring document.
s 41 amd 2014 No. 26 s 240 (1)
(sec.41-ssec.1) If— a guardian, administrator or attorney for an adult disagrees with another person who is a guardian, administrator or attorney for the adult about the way power for a matter, other than a health matter, should be exercised; and the disagreement can not be resolved by mediation by the public guardian; the public guardian or any person mentioned in paragraph (a) may apply for directions to the tribunal.
(sec.41-ssec.2) In this section— attorney means an attorney under an enduring document.
(a) a guardian, administrator or attorney for an adult disagrees with another person who is a guardian, administrator or attorney for the adult about the way power for a matter, other than a health matter, should be exercised; and
(b) the disagreement can not be resolved by mediation by the public guardian;
sec.42
Disagreement about health matter
sec.42 Disagreement about health matter
If there is a disagreement about a health matter for an adult and the disagreement can not be resolved by mediation by the public guardian, the public guardian may exercise power for the health matter.
If the public guardian exercises power under subsection (1) , the public guardian must advise the tribunal in writing of the following details—
the name of the adult;
an outline of the disagreement;
the name of each guardian, attorney or eligible statutory health attorney involved in the disagreement;
the decision made by the public guardian.
In this section—
attorney means an attorney under an enduring document or a statutory health attorney.
disagreement about a health matter means—
a disagreement between a guardian or attorney for an adult and another person who is a guardian or attorney for the adult about the way power for the health matter should be exercised; or
a disagreement between or among 2 or more eligible statutory health attorneys for an adult about which of them should be the adult’s statutory health attorney or how power for the health matter should be exercised.
eligible statutory health attorneys are persons eligible to be an adult’s statutory health attorney under the Powers of Attorney Act 1998 , section 63 (1) (a) , (b) or (c) .
s 42 amd 2014 No. 26 s 240 (1)
(sec.42-ssec.1) If there is a disagreement about a health matter for an adult and the disagreement can not be resolved by mediation by the public guardian, the public guardian may exercise power for the health matter.
(sec.42-ssec.2) If the public guardian exercises power under subsection (1) , the public guardian must advise the tribunal in writing of the following details— the name of the adult; an outline of the disagreement; the name of each guardian, attorney or eligible statutory health attorney involved in the disagreement; the decision made by the public guardian.
(sec.42-ssec.3) In this section— attorney means an attorney under an enduring document or a statutory health attorney. disagreement about a health matter means— a disagreement between a guardian or attorney for an adult and another person who is a guardian or attorney for the adult about the way power for the health matter should be exercised; or a disagreement between or among 2 or more eligible statutory health attorneys for an adult about which of them should be the adult’s statutory health attorney or how power for the health matter should be exercised. eligible statutory health attorneys are persons eligible to be an adult’s statutory health attorney under the Powers of Attorney Act 1998 , section 63 (1) (a) , (b) or (c) .
(a) the name of the adult;
(b) an outline of the disagreement;
(c) the name of each guardian, attorney or eligible statutory health attorney involved in the disagreement;
(d) the decision made by the public guardian.
(a) a disagreement between a guardian or attorney for an adult and another person who is a guardian or attorney for the adult about the way power for the health matter should be exercised; or
(b) a disagreement between or among 2 or more eligible statutory health attorneys for an adult about which of them should be the adult’s statutory health attorney or how power for the health matter should be exercised.
sec.43
Acting contrary to general principles or health care principles
sec.43 Acting contrary to general principles or health care principles
If a guardian or attorney for a health matter for an adult—
refuses to make a decision about the health matter for the adult and the refusal is contrary to the general principles or the health care principles; or
makes a decision about the health matter for the adult and the decision is contrary to the general principles or the health care principles;
the public guardian may exercise power for the health matter.
If the public guardian exercises power under this section, the public guardian must advise the tribunal in writing of the following details—
the name of the adult;
the name of the guardian or attorney;
a statement as to why the refusal or decision is contrary to the general principles or the health care principles;
the decision made by the public guardian.
In this section—
attorney means an attorney under an enduring document or a statutory health attorney.
s 43 amd 2014 No. 26 s 240 (1) ; 2019 No. 9 s 21
(sec.43-ssec.1) If a guardian or attorney for a health matter for an adult— refuses to make a decision about the health matter for the adult and the refusal is contrary to the general principles or the health care principles; or makes a decision about the health matter for the adult and the decision is contrary to the general principles or the health care principles; the public guardian may exercise power for the health matter.
(sec.43-ssec.2) If the public guardian exercises power under this section, the public guardian must advise the tribunal in writing of the following details— the name of the adult; the name of the guardian or attorney; a statement as to why the refusal or decision is contrary to the general principles or the health care principles; the decision made by the public guardian.
(sec.43-ssec.3) In this section— attorney means an attorney under an enduring document or a statutory health attorney.
(a) refuses to make a decision about the health matter for the adult and the refusal is contrary to the general principles or the health care principles; or
(b) makes a decision about the health matter for the adult and the decision is contrary to the general principles or the health care principles;
(a) the name of the adult;
(b) the name of the guardian or attorney;
(c) a statement as to why the refusal or decision is contrary to the general principles or the health care principles;
(d) the decision made by the public guardian.
sec.44
Right of guardian or administrator to information
sec.44 Right of guardian or administrator to information
A guardian or administrator who has power for a matter for an adult has a right to all the information the adult would have been entitled to if the adult had capacity and which is necessary to make an informed exercise of the power.
At the guardian’s or administrator’s request, a person who has custody or control of the information must give the information to the guardian or administrator, unless the person has a reasonable excuse.
If a person who has custody or control of the information does not comply with a request by a guardian or administrator to give information, the tribunal may, on application by the guardian or administrator, order the person to give the information to the guardian or administrator.
If the tribunal orders a person to give information to the guardian or administrator, the person must comply with the order, unless the person has a reasonable excuse.
It is a reasonable excuse for a person to fail to give information because giving the information might tend to incriminate the person.
Subject to subsection (5) , this section overrides—
any restriction, in an Act or the common law, about the disclosure or confidentiality of information; and
any claim of confidentiality or privilege, including a claim based on legal professional privilege.
s 44 amd 2003 No. 87 s 10
(sec.44-ssec.1) A guardian or administrator who has power for a matter for an adult has a right to all the information the adult would have been entitled to if the adult had capacity and which is necessary to make an informed exercise of the power.
(sec.44-ssec.2) At the guardian’s or administrator’s request, a person who has custody or control of the information must give the information to the guardian or administrator, unless the person has a reasonable excuse.
(sec.44-ssec.3) If a person who has custody or control of the information does not comply with a request by a guardian or administrator to give information, the tribunal may, on application by the guardian or administrator, order the person to give the information to the guardian or administrator.
(sec.44-ssec.4) If the tribunal orders a person to give information to the guardian or administrator, the person must comply with the order, unless the person has a reasonable excuse.
(sec.44-ssec.5) It is a reasonable excuse for a person to fail to give information because giving the information might tend to incriminate the person.
(sec.44-ssec.6) Subject to subsection (5) , this section overrides— any restriction, in an Act or the common law, about the disclosure or confidentiality of information; and any claim of confidentiality or privilege, including a claim based on legal professional privilege.
(a) any restriction, in an Act or the common law, about the disclosure or confidentiality of information; and
(b) any claim of confidentiality or privilege, including a claim based on legal professional privilege.
sec.45
Execution of instrument etc.
sec.45 Execution of instrument etc.
If necessary or convenient for the exercise of power given to a guardian or administrator (the appointee ), the appointee may—
execute an instrument with the appointee’s own signature or, if sealing is required or used, with the appointee’s own seal; and
do any other thing in the appointee’s own name.
An instrument executed by an appointee must be executed in a way showing the appointee executes it as guardian or administrator for the adult.
An instrument executed, or thing done, in the way mentioned in this section is as effective as if executed or done by the adult—
with the adult’s signature; or
with the adult’s signature and seal; or
in the adult’s name.
This section applies subject to the Property Law Act 2023 , section 52 .
s 45 amd 2021 No. 23 s 58 sch 1 ; 2023 No. 27 s 289 sch 3
(sec.45-ssec.1) If necessary or convenient for the exercise of power given to a guardian or administrator (the appointee ), the appointee may— execute an instrument with the appointee’s own signature or, if sealing is required or used, with the appointee’s own seal; and do any other thing in the appointee’s own name.
(sec.45-ssec.2) An instrument executed by an appointee must be executed in a way showing the appointee executes it as guardian or administrator for the adult.
(sec.45-ssec.3) An instrument executed, or thing done, in the way mentioned in this section is as effective as if executed or done by the adult— with the adult’s signature; or with the adult’s signature and seal; or in the adult’s name.
(sec.45-ssec.4) This section applies subject to the Property Law Act 2023 , section 52 .
(a) execute an instrument with the appointee’s own signature or, if sealing is required or used, with the appointee’s own seal; and
(b) do any other thing in the appointee’s own name.
(a) with the adult’s signature; or
(b) with the adult’s signature and seal; or
(c) in the adult’s name.
sec.46
Implied power to execute a deed
sec.46 Implied power to execute a deed
If a tribunal order gives a guardian or administrator power to do a thing, the guardian or administrator is given power to execute a deed to do the thing.
sec.47
Payment of expenses
sec.47 Payment of expenses
A guardian or administrator for an adult is entitled to reimbursement from the adult of the reasonable expenses incurred in acting as guardian or administrator.
sec.48
Remuneration of professional administrators
sec.48 Remuneration of professional administrators
An administrator for an adult is entitled to remuneration from the adult if the tribunal makes an order that the administrator is to be remunerated by the adult.
The tribunal may make an order under subsection (1) only if the administrator carries on a business providing professional services.
The remuneration may not be more than the amount the tribunal considers fair and reasonable, having regard to—
the nature and complexity of the service; and
the care, skill and specialised knowledge required to provide the service; and
the responsibility displayed in providing the service; and
the time within which the service was provided; and
the place where, and the circumstances in which, the service was provided.
Nothing in this section affects the right of the public trustee or a trustee company to remuneration or commission under another Act or the Corporations Act .
s 48 amd 2009 No. 49 s 102 ; 2019 No. 9 s 22
(sec.48-ssec.1) An administrator for an adult is entitled to remuneration from the adult if the tribunal makes an order that the administrator is to be remunerated by the adult.
(sec.48-ssec.2) The tribunal may make an order under subsection (1) only if the administrator carries on a business providing professional services.
(sec.48-ssec.3) The remuneration may not be more than the amount the tribunal considers fair and reasonable, having regard to— the nature and complexity of the service; and the care, skill and specialised knowledge required to provide the service; and the responsibility displayed in providing the service; and the time within which the service was provided; and the place where, and the circumstances in which, the service was provided.
(sec.48-ssec.4) Nothing in this section affects the right of the public trustee or a trustee company to remuneration or commission under another Act or the Corporations Act .
(a) the nature and complexity of the service; and
(b) the care, skill and specialised knowledge required to provide the service; and
(c) the responsibility displayed in providing the service; and
(d) the time within which the service was provided; and
(e) the place where, and the circumstances in which, the service was provided.
ch.4-pt.2
Particular functions and powers of administrators
Particular functions and powers of administrators
sec.49
Keep records
sec.49 Keep records
An administrator for an adult must—
keep records that are reasonable in the circumstances; and
if required by the tribunal—produce records of dealings and transactions involving the adult’s property that are reasonable for inspection at the time the tribunal decides.
Maximum penalty—100 penalty units.
An administrator must also, if required by the tribunal—
keep the records the tribunal decides; and
produce the records for inspection at the time and in the way the tribunal decides.
Maximum penalty—100 penalty units.
(sec.49-ssec.1) An administrator for an adult must— keep records that are reasonable in the circumstances; and if required by the tribunal—produce records of dealings and transactions involving the adult’s property that are reasonable for inspection at the time the tribunal decides. Maximum penalty—100 penalty units.
(sec.49-ssec.2) An administrator must also, if required by the tribunal— keep the records the tribunal decides; and produce the records for inspection at the time and in the way the tribunal decides. Maximum penalty—100 penalty units.
(a) keep records that are reasonable in the circumstances; and
(b) if required by the tribunal—produce records of dealings and transactions involving the adult’s property that are reasonable for inspection at the time the tribunal decides.
(a) keep the records the tribunal decides; and
(b) produce the records for inspection at the time and in the way the tribunal decides.
sec.50
Keep property separate
sec.50 Keep property separate
An administrator for an adult must keep the administrator’s property separate from the adult’s property.
Maximum penalty—300 penalty units.
Subsection (1) does not apply to property owned jointly by the adult and administrator.
Subsection (1) does not affect another obligation imposed by law.
s 50 amd 2003 No. 87 s 11
(sec.50-ssec.1) An administrator for an adult must keep the administrator’s property separate from the adult’s property. Maximum penalty—300 penalty units.
(sec.50-ssec.2) Subsection (1) does not apply to property owned jointly by the adult and administrator.
(sec.50-ssec.3) Subsection (1) does not affect another obligation imposed by law.
sec.51
Power to invest and continue investments
sec.51 Power to invest and continue investments
This section applies if an administrator for an adult has power to invest.
The administrator may invest only in authorised investments.
However, if, when the administrator is appointed, the adult had investments that were not authorised investments, the administrator may continue the investments, including by taking up rights to issues of new shares, or options for new shares, to which the adult becomes entitled by the adult’s existing shareholding.
(sec.51-ssec.1) This section applies if an administrator for an adult has power to invest.
(sec.51-ssec.2) The administrator may invest only in authorised investments.
(sec.51-ssec.3) However, if, when the administrator is appointed, the adult had investments that were not authorised investments, the administrator may continue the investments, including by taking up rights to issues of new shares, or options for new shares, to which the adult becomes entitled by the adult’s existing shareholding.
sec.52
Section sec.52
s 52 om 2003 No. 87 s 12
sec.53
Section sec.53
s 53 om 2003 No. 87 s 12
sec.54
Gifts and donations
sec.54 Gifts and donations
Unless the tribunal orders otherwise, an administrator for an adult may give away or donate the adult’s property only if—
the gift or donation is—
a gift or donation of the nature the adult made when the adult had capacity; or
a gift or donation of the nature the adult might reasonably be expected to make; and
the value of the gift or donation is not more than what is reasonable having regard to all the circumstances and, in particular, the adult’s financial circumstances.
The administrator or a charity with which the administrator has a connection is not precluded from receiving a gift or donation under subsection (1) .
s 54 amd 2019 No. 9 s 23
(sec.54-ssec.1) Unless the tribunal orders otherwise, an administrator for an adult may give away or donate the adult’s property only if— the gift or donation is— a gift or donation of the nature the adult made when the adult had capacity; or a gift or donation of the nature the adult might reasonably be expected to make; and the value of the gift or donation is not more than what is reasonable having regard to all the circumstances and, in particular, the adult’s financial circumstances.
(sec.54-ssec.2) The administrator or a charity with which the administrator has a connection is not precluded from receiving a gift or donation under subsection (1) .
(a) the gift or donation is— (i) a gift or donation of the nature the adult made when the adult had capacity; or (ii) a gift or donation of the nature the adult might reasonably be expected to make; and
(i) a gift or donation of the nature the adult made when the adult had capacity; or
(ii) a gift or donation of the nature the adult might reasonably be expected to make; and
(b) the value of the gift or donation is not more than what is reasonable having regard to all the circumstances and, in particular, the adult’s financial circumstances.
(i) a gift or donation of the nature the adult made when the adult had capacity; or
(ii) a gift or donation of the nature the adult might reasonably be expected to make; and
sec.55
Maintain adult’s dependants
sec.55 Maintain adult’s dependants
An administrator for an adult may provide from the adult’s estate for the needs of a dependant of the adult.
However, unless the tribunal orders otherwise, what is provided must not be more than what is reasonable having regard to all the circumstances and, in particular, the adult’s financial circumstances.
(sec.55-ssec.1) An administrator for an adult may provide from the adult’s estate for the needs of a dependant of the adult.
(sec.55-ssec.2) However, unless the tribunal orders otherwise, what is provided must not be more than what is reasonable having regard to all the circumstances and, in particular, the adult’s financial circumstances.
ch.4-pt.3
Other provisions applying to guardians and administrators
Other provisions applying to guardians and administrators
sec.56
Protection if unaware of change of appointee’s power
sec.56 Protection if unaware of change of appointee’s power
This section applies if—
the tribunal gives power for a matter to a guardian or administrator; and
the power is changed.
The guardian or administrator who, without knowing of the change, purports to exercise power for the matter does not incur any liability, either to the adult or anyone else, because of the change.
A transaction between—
the guardian or administrator who purports to exercise power for the matter; and
a person who does not know of the change;
is, in favour of the person, as valid as if the power had not been changed.
In this section—
change , of power for a matter, includes—
suspension of power for the matter; and
removal as guardian or administrator for the matter.
know , of a change of a power, includes—
know of the happening of an event that changes the power; and
For an example of an event, an appointment ends if a guardian or administrator for an adult becomes a paid carer, or health provider, for the adult—see section 26 (Automatic revocation).
have reason to believe the change has happened.
s 56 amd 2010 No. 2 s 96 sch 1
(sec.56-ssec.1) This section applies if— the tribunal gives power for a matter to a guardian or administrator; and the power is changed.
(sec.56-ssec.2) The guardian or administrator who, without knowing of the change, purports to exercise power for the matter does not incur any liability, either to the adult or anyone else, because of the change.
(sec.56-ssec.3) A transaction between— the guardian or administrator who purports to exercise power for the matter; and a person who does not know of the change; is, in favour of the person, as valid as if the power had not been changed.
(sec.56-ssec.4) In this section— change , of power for a matter, includes— suspension of power for the matter; and removal as guardian or administrator for the matter. know , of a change of a power, includes— know of the happening of an event that changes the power; and For an example of an event, an appointment ends if a guardian or administrator for an adult becomes a paid carer, or health provider, for the adult—see section 26 (Automatic revocation). have reason to believe the change has happened.
(a) the tribunal gives power for a matter to a guardian or administrator; and
(b) the power is changed.
(a) the guardian or administrator who purports to exercise power for the matter; and
(b) a person who does not know of the change;
(a) suspension of power for the matter; and
(b) removal as guardian or administrator for the matter.
(a) know of the happening of an event that changes the power; and Note— For an example of an event, an appointment ends if a guardian or administrator for an adult becomes a paid carer, or health provider, for the adult—see section 26 (Automatic revocation).
(b) have reason to believe the change has happened.
sec.57
Advice of change of successive appointee
sec.57 Advice of change of successive appointee
This section applies if the tribunal appoints successive guardians or administrators so power is given to a particular appointee only when the power of a previous appointee ends.
If the power of a previous appointee ends—
the previous appointee must advise the next successive appointee of the ending of the previous appointment; and
the next successive appointee must advise the tribunal in writing of the change as soon as practicable.
(sec.57-ssec.1) This section applies if the tribunal appoints successive guardians or administrators so power is given to a particular appointee only when the power of a previous appointee ends.
(sec.57-ssec.2) If the power of a previous appointee ends— the previous appointee must advise the next successive appointee of the ending of the previous appointment; and the next successive appointee must advise the tribunal in writing of the change as soon as practicable.
(a) the previous appointee must advise the next successive appointee of the ending of the previous appointment; and
(b) the next successive appointee must advise the tribunal in writing of the change as soon as practicable.
sec.58
Relief from personal liability
sec.58 Relief from personal liability
This section applies if the court considers—
a guardian or administrator is, or may be, personally liable for a contravention of this Act; and
the guardian or administrator has acted honestly and reasonably and ought fairly to be excused for the contravention.
The court may relieve the guardian or administrator of all or part of the guardian’s or administrator’s personal liability for the contravention.
s 58 sub 2019 No. 9 s 24
(sec.58-ssec.1) This section applies if the court considers— a guardian or administrator is, or may be, personally liable for a contravention of this Act; and the guardian or administrator has acted honestly and reasonably and ought fairly to be excused for the contravention.
(sec.58-ssec.2) The court may relieve the guardian or administrator of all or part of the guardian’s or administrator’s personal liability for the contravention.
(a) a guardian or administrator is, or may be, personally liable for a contravention of this Act; and
(b) the guardian or administrator has acted honestly and reasonably and ought fairly to be excused for the contravention.
sec.59
Compensation and accounting for profits for failure to comply
sec.59 Compensation and accounting for profits for failure to comply
The tribunal or a court may order a guardian or administrator for an adult (an appointee ) to pay an amount to the adult or, if the adult has died, the adult’s estate—
to compensate for a loss caused by the appointee’s failure to comply with this Act in the exercise of a power; or
to account for any profits the appointee has accrued as a result of the appointee’s failure to comply with this Act in the exercise of a power.
However, the tribunal or court may not order the appointee to make a payment under both subsection (1) (a) and (b) in relation to the same exercise of power.
Subsection (1) applies even if the appointee is convicted of an offence in relation to the appointee’s failure.
Also, subsection (1) applies even if the appointee’s appointment has ended.
If the adult or appointee has died, an application for an order under subsection (1) must be made to the tribunal or a court within 6 months after the death.
If the adult and appointee have died, an application for an order under subsection (1) must be made to the tribunal or a court within 6 months after the first death.
The tribunal or a court may extend the application time.
If security has been given under section 19 and the tribunal or a court makes an order under subsection (1) , the tribunal or court may also order that the security be applied in satisfaction of the order.
An amount paid under a tribunal or court order under subsection (1) must be taken into account in assessing damages in a later civil proceeding in relation to the appointee’s exercise of the power.
In this section—
court means any court.
s 59 amd 2019 No. 9 s 25
(sec.59-ssec.1) The tribunal or a court may order a guardian or administrator for an adult (an appointee ) to pay an amount to the adult or, if the adult has died, the adult’s estate— to compensate for a loss caused by the appointee’s failure to comply with this Act in the exercise of a power; or to account for any profits the appointee has accrued as a result of the appointee’s failure to comply with this Act in the exercise of a power.
(sec.59-ssec.2) However, the tribunal or court may not order the appointee to make a payment under both subsection (1) (a) and (b) in relation to the same exercise of power.
(sec.59-ssec.3) Subsection (1) applies even if the appointee is convicted of an offence in relation to the appointee’s failure.
(sec.59-ssec.4) Also, subsection (1) applies even if the appointee’s appointment has ended.
(sec.59-ssec.5) If the adult or appointee has died, an application for an order under subsection (1) must be made to the tribunal or a court within 6 months after the death.
(sec.59-ssec.6) If the adult and appointee have died, an application for an order under subsection (1) must be made to the tribunal or a court within 6 months after the first death.
(sec.59-ssec.7) The tribunal or a court may extend the application time.
(sec.59-ssec.8) If security has been given under section 19 and the tribunal or a court makes an order under subsection (1) , the tribunal or court may also order that the security be applied in satisfaction of the order.
(sec.59-ssec.9) An amount paid under a tribunal or court order under subsection (1) must be taken into account in assessing damages in a later civil proceeding in relation to the appointee’s exercise of the power.
(sec.59-ssec.10) In this section— court means any court.
(a) to compensate for a loss caused by the appointee’s failure to comply with this Act in the exercise of a power; or
(b) to account for any profits the appointee has accrued as a result of the appointee’s failure to comply with this Act in the exercise of a power.
sec.60
Power to apply to court for compensation for loss of benefit in estate
sec.60 Power to apply to court for compensation for loss of benefit in estate
This section applies if a person’s benefit in an adult’s estate under the adult’s will, on intestacy, or by another disposition taking effect on the adult’s death, is lost because of a sale or other dealing with the adult’s property by an administrator of the adult.
This section applies even if the person whose benefit is lost is the administrator by whose dealing the benefit is lost.
The person, or the person’s personal representative, may apply to the court for compensation out of the adult’s estate.
Court means the Supreme Court—see schedule 4 (Dictionary).
The court may order that the person, or the person’s estate, be compensated out of the adult’s estate as the court considers appropriate, but the compensation must not be more than the value of the lost benefit.
The Succession Act 1981 , sections 41 (2) to (8) , (10) and (11) and 44 apply to an application and an order made on it as if the application were an application under part 4 of that Act by a person entitled to make an application.
(sec.60-ssec.1) This section applies if a person’s benefit in an adult’s estate under the adult’s will, on intestacy, or by another disposition taking effect on the adult’s death, is lost because of a sale or other dealing with the adult’s property by an administrator of the adult.
(sec.60-ssec.2) This section applies even if the person whose benefit is lost is the administrator by whose dealing the benefit is lost.
(sec.60-ssec.3) The person, or the person’s personal representative, may apply to the court for compensation out of the adult’s estate. Court means the Supreme Court—see schedule 4 (Dictionary).
(sec.60-ssec.4) The court may order that the person, or the person’s estate, be compensated out of the adult’s estate as the court considers appropriate, but the compensation must not be more than the value of the lost benefit.
(sec.60-ssec.5) The Succession Act 1981 , sections 41 (2) to (8) , (10) and (11) and 44 apply to an application and an order made on it as if the application were an application under part 4 of that Act by a person entitled to make an application.
sec.60A
Effect on beneficiary’s interest if property dealt with by administrator
sec.60A Effect on beneficiary’s interest if property dealt with by administrator
This section applies to a person who is a beneficiary ( the beneficiary ) under a deceased adult’s will.
The beneficiary has the same interest in any surplus money or other property ( the proceeds ) arising from a sale, mortgage, charge, disposition of, or other dealing with, property under the powers given to an administrator as the beneficiary would have had in the property sold, mortgaged, charged, disposed of or otherwise dealt with, if the sale, mortgage, charge, disposition or other dealing had not happened.
The beneficiary is also entitled to—
any money or other property that is able to be traced as income generated by the proceeds; and
any capital gain that is generated from the proceeds.
This section applies even if the beneficiary is the administrator who sold, mortgaged, charged, disposed of or otherwise dealt with the property.
This section applies subject to any order made by the court under section 60C (1) .
s 60A ins 2019 No. 9 s 26
(sec.60A-ssec.1) This section applies to a person who is a beneficiary ( the beneficiary ) under a deceased adult’s will.
(sec.60A-ssec.2) The beneficiary has the same interest in any surplus money or other property ( the proceeds ) arising from a sale, mortgage, charge, disposition of, or other dealing with, property under the powers given to an administrator as the beneficiary would have had in the property sold, mortgaged, charged, disposed of or otherwise dealt with, if the sale, mortgage, charge, disposition or other dealing had not happened.
(sec.60A-ssec.3) The beneficiary is also entitled to— any money or other property that is able to be traced as income generated by the proceeds; and any capital gain that is generated from the proceeds.
(sec.60A-ssec.4) This section applies even if the beneficiary is the administrator who sold, mortgaged, charged, disposed of or otherwise dealt with the property.
(sec.60A-ssec.5) This section applies subject to any order made by the court under section 60C (1) .
(a) any money or other property that is able to be traced as income generated by the proceeds; and
(b) any capital gain that is generated from the proceeds.
sec.60B
Administrator not required to keep proceeds and property separate
sec.60B Administrator not required to keep proceeds and property separate
Section 60A does not require an administrator for an adult who has sold, mortgaged, charged, disposed of, or otherwise dealt with, the adult’s property under the powers given to the administrator, to keep any surplus money or other property arising from the sale, mortgage, charge, disposition or other dealing separate from other property of the adult.
s 60B ins 2019 No. 9 s 26
sec.60C
Application to court to confirm or vary operation of s 60A
sec.60C Application to court to confirm or vary operation of s 60A
An application may be made to the court for—
an order, including an order to direct a conveyance, deed or other thing to be executed or done, to give effect to section 60A ; or
an order to ensure a beneficiary under the adult’s will does not gain an unjust and disproportionate advantage or suffer an unjust and disproportionate disadvantage of a kind not contemplated by the will because of the operation of section 60A .
An application may be made by—
a beneficiary under the adult’s will; or
the personal representative of a deceased beneficiary under the adult’s will; or
the personal representative of the adult.
An order made under subsection (1) (b) —
has effect as if it had been made as a codicil to the adult’s will executed immediately before the adult’s death; and
applies despite any contrary operation of section 60A .
An application under this section must be made to the court within 6 months after the adult’s death.
The court may extend the application time.
The Succession Act 1981 , section 44 (1) to (4) applies to an application and an order made on it as if the application were an application under part 4 of that Act by a person entitled to make an application.
s 60C ins 2019 No. 9 s 26
(sec.60C-ssec.1) An application may be made to the court for— an order, including an order to direct a conveyance, deed or other thing to be executed or done, to give effect to section 60A ; or an order to ensure a beneficiary under the adult’s will does not gain an unjust and disproportionate advantage or suffer an unjust and disproportionate disadvantage of a kind not contemplated by the will because of the operation of section 60A .
(sec.60C-ssec.2) An application may be made by— a beneficiary under the adult’s will; or the personal representative of a deceased beneficiary under the adult’s will; or the personal representative of the adult.
(sec.60C-ssec.3) An order made under subsection (1) (b) — has effect as if it had been made as a codicil to the adult’s will executed immediately before the adult’s death; and applies despite any contrary operation of section 60A .
(sec.60C-ssec.4) An application under this section must be made to the court within 6 months after the adult’s death.
(sec.60C-ssec.5) The court may extend the application time.
(sec.60C-ssec.6) The Succession Act 1981 , section 44 (1) to (4) applies to an application and an order made on it as if the application were an application under part 4 of that Act by a person entitled to make an application.
(a) an order, including an order to direct a conveyance, deed or other thing to be executed or done, to give effect to section 60A ; or
(b) an order to ensure a beneficiary under the adult’s will does not gain an unjust and disproportionate advantage or suffer an unjust and disproportionate disadvantage of a kind not contemplated by the will because of the operation of section 60A .
(a) a beneficiary under the adult’s will; or
(b) the personal representative of a deceased beneficiary under the adult’s will; or
(c) the personal representative of the adult.
(a) has effect as if it had been made as a codicil to the adult’s will executed immediately before the adult’s death; and
(b) applies despite any contrary operation of section 60A .
ch.5-pt.1
Philosophy and purpose
Philosophy and purpose
sec.61
Purpose to achieve balance for health care
sec.61 Purpose to achieve balance for health care
This chapter seeks to strike a balance between—
ensuring an adult is not deprived of necessary health care only because the adult has impaired capacity for a health matter or special health matter; and
ensuring health care is given to the adult only if it is appropriate in all the circumstances.
See also the general principles and health care principles set out in sections 11B and 11C .
s 61 amd 2001 No. 95 s 5 ; 2012 No. 37 s 51 sch ; 2019 No. 9 s 27
(a) ensuring an adult is not deprived of necessary health care only because the adult has impaired capacity for a health matter or special health matter; and
(b) ensuring health care is given to the adult only if it is appropriate in all the circumstances.
ch.5-pt.2
Scheme for health care and special health care
Scheme for health care and special health care
ch.5-pt.2-div.1
Health care—no consent
Health care—no consent
sec.62
Division’s scope
sec.62 Division’s scope
This division deals with when health care, other than special health care, may be carried out without consent.
More sections below
Source text: opening excerpt
Sourced from Queensland Legislation (legislation.qld.gov.au), CC BY 4.0.
ch.3-pt.1 Making an appointment order
Making an appointment order
sec.12 Appointment
sec.12 Appointment
The tribunal may, by order, appoint a guardian for a personal matter, or an administrator for a financial matter, for an adult if the tribunal is satisfied—
the adult has impaired capacity for the matter; and
there is a need for a decision in relation to the matter or the adult is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the adult’s health, welfare or property; and
without an appointment—
the adult’s needs will not be adequately met; or
the adult’s interests will not be adequately protected.
The appointment may be on terms considered appropriate by the tribunal.
The tribunal may make the order on its own initiative or on the application of the adult, the public guardian or an interested person.
This section does not apply for the appointment of a guardian for a restrictive practice matter under chapter 5B .
Section 80ZD provides for the appointment of guardians for restrictive practice matters.
s 12 amd 2008 No. 23 s 15 ; 2014 No. 26 s 240 (1)
(sec.12-ssec.1) The tribunal may, by order, appoint a guardian for a personal matter, or an administrator for a financial matter, for an adult if the tribunal is satisfied— the adult has impaired capacity for the matter; and there is a need for a decision in relation to the matter or the adult is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the adult’s health, welfare or property; and without an appointment— the adult’s needs will not be adequately met; or the adult’s interests will not be adequately protected.
(sec.12-ssec.2) The appointment may be on terms considered appropriate by the tribunal.
(sec.12-ssec.3) The tribunal may make the order on its own initiative or on the application of the adult, the public guardian or an interested person.
(sec.12-ssec.4) This section does not apply for the appointment of a guardian for a restrictive practice matter under chapter 5B . Section 80ZD provides for the appointment of guardians for restrictive practice matters.
(a) the adult has impaired capacity for the matter; and
(b) there is a need for a decision in relation to the matter or the adult is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the adult’s health, welfare or property; and
(c) without an appointment— (i) the adult’s needs will not be adequately met; or (ii) the adult’s interests will not be adequately protected.
(i) the adult’s needs will not be adequately met; or
Advance appointments are available under s.13 for an individual aged 17½ but not yet 18 where there is a reasonable likelihood of impaired capacity on turning 18, a need or risk, and inadequate protection without appointment. The appointment commences on the 18th birthday (s.13(3)) and ordinarily ends on the 19th birthday unless extended (s.13(4)–(6)); extension is permitted only where need will continue and review is “very limited”. A parallel regime exists for restrictive-practice guardians under s.13A (inserted 2008, amended 2016 and 2019), which adds requirements that the individual’s behaviour has previously caused harm and is likely to do so again. Section 14 governs who may be appointed: guardians must generally be over 18, not a paid carer or health provider, and not the public guardian unless no other suitable person exists (s.14(2)); administrators must satisfy similar criteria and not be bankrupt. The tribunal must have regard to the “appropriateness considerations” in s.15, which include the general principles, potential conflicts, compatibility, availability, competence (including criminal history, prior removals, bankruptcy), and whether the person has been a paid carer. Family relationship or potential inheritance do not of themselves create a conflict (s.15(2)–(3)). Proposed appointees must disclose relevant matters by statutory declaration (s.16), with a continuing duty to update (s.17). The tribunal or registrar may inquire into suitability, including criminal history via the police commissioner (s.18).
The Act then regulates the relationship with enduring documents (ss.22–25). An attorney’s power is subordinated to a later tribunal appointment of which the tribunal was aware (s.22); if the tribunal appoints without knowledge of an enduring document, the appointee’s power is suspended on discovery pending review (s.23). Protection is afforded to attorneys and third parties who act without knowledge of the tribunal order (ss.24–25). Part 3 governs revocation and change: automatic revocation occurs on events such as the appointee becoming a paid carer, marriage dissolution, or death (s.26); withdrawal is possible with tribunal leave (s.27). Specific rules apply to missing-person administrators (ss.27A–27B). Periodic reviews are mandatory at least every five years (s.28), with additional reviews available on application (s.29). The review process in s.31 requires the tribunal to revoke unless satisfied a new application would succeed; removal is permitted only for incompetence or where another person is more appropriate.
Chapter 4 sets out the functions and powers of appointees. Guardians and administrators may do anything the adult could have done if capacitated (s.33), must apply the general principles (and health-care principles for health matters) (s.34), act honestly and diligently (s.35), comply with tribunal orders (s.36), and avoid conflict transactions unless authorised (s.37). Multiple appointees act jointly unless otherwise ordered (ss.38–39). Consultation duties exist (s.40), with mechanisms for resolving disagreements (ss.41–43). Appointees have a right to information (s.44) and may execute documents in their own name (s.45). Administrators must keep records (s.49), separate property (s.50), invest only in authorised investments (s.51), make limited gifts (s.54) and maintain dependants (s.55). Remuneration is available only for professional administrators where ordered (s.48). Enforcement includes penalties (up to 200 penalty units for breaches of honesty or conflict rules), compensation orders (s.59), and court relief for honest mistakes (s.58).
The Act interacts with the Powers of Attorney Act 1998 (enduring documents take priority unless the tribunal intervenes), the Public Guardian Act 2014, the Mental Health Act 2016 (forensic orders), and the Disability Services Act 2006 (restrictive practices). Chapter 5B (added 2008) regulates containment, seclusion and other restrictive practices for adults with intellectual or cognitive disability receiving disability services, requiring tribunal approval in most cases and applying the general principles. The tribunal’s jurisdiction is protective and inquisitorial; it must ensure it has all relevant information (s.130) and may make interim orders where there is immediate risk (s.129).
Recent changes (principally the 2019 amendments) introduced the missing-person regime (ss.12A–12B, 27A–27B), expanded s.15 appropriateness factors, aligned review periods, and inserted ss.60A–60C to preserve beneficiary interests in estate property dealt with by administrators. These changes responded to gaps exposed by coronial findings on missing persons and to harmonise with national disability-insurance schemes. Court challenges have centred on the balance between autonomy and protection (e.g. whether “unreasonable risk” in s.12(1)(b) is objectively or subjectively assessed) and the interaction with the parens patriae jurisdiction of the Supreme Court, which the Act expressly preserves (s.240). Controversies include the breadth of “impaired capacity” (defined by reference to the Powers of Attorney Act 1998, s.5), the potential for over-appointment of the public guardian, and the practical burden of five-yearly reviews.
Gotchas that practising lawyers should note: (1) the tribunal’s obligation under s.31(2) to revoke unless it would make a fresh appointment means that on review the onus effectively shifts to the appointee to demonstrate ongoing need; many practitioners assume existing orders continue indefinitely. (2) Section 15(1)(c) requires the tribunal to consider likely conflicts, yet s.15(2)–(3) expressly state that family relationship or beneficiary status do not of themselves create conflict; the distinction is often misunderstood, leading to unnecessary objections. (3) An administrator who fails to notify the registrar of titles within three months of appointment concerning land (s.21) risks removal for incompetence under s.31(5)(c); the 2019 amendments tightened this to three months from the previous “reasonable time”. (4) The continuing duty under s.17 to update appropriateness information survives appointment and carries a 40-penalty-unit sanction; failure can found later compensation claims under s.59 even if the original appointment was valid. (5) For missing-person administrators, the obligation under s.27A to notify the tribunal immediately upon discovering the adult is alive or dead is absolute; breach can trigger automatic revocation under s.27B and personal liability. (6) Section 37’s conflict-transaction prohibition is wider than many realise: it catches not only direct self-dealing but also transactions with close relatives or where the administrator has a separate duty; the safe-harbour for joint property or estate benefits is narrowly construed. (7) The public guardian’s power under ss.42–43 to intervene in health-matter disagreements or where principles are breached is rarely invoked but, when exercised, suspends the guardian’s or attorney’s power pending tribunal review; practitioners often overlook the mandatory written notification to the tribunal. Finally, the general principles in sch.1 (incorporated by s.34) are not mere aspirational statements; breach can found removal for incompetence (s.31(5)(d)) or compensation (s.59). Compliance checklists should therefore begin with a documented application of each principle to every major decision.
How to comply
Practitioners advising clients or acting as appointees should adopt a structured compliance protocol. First, before any tribunal application, obtain a formal capacity assessment that addresses both the specific matter and the statutory definition in the Powers of Attorney Act 1998, s.5; the assessment must be recent and preferably from a specialist (geriatrician or neuropsychologist). Second, prepare evidence on each limb of s.12(1): impaired capacity, need/risk, and inadequacy of informal arrangements. Third, identify and approach the least restrictive suitable appointee, documenting the s.15 considerations (including criminal-history and bankruptcy checks). Fourth, ensure any proposed appointee has completed the s.16 disclosure by statutory declaration; the continuing s.17 duty should be explained in writing at appointment. Fifth, if land is involved, diarise the three-month notification to the registrar of titles under s.21 and budget for the titles-registry fee (reimbursable under s.47). Sixth, for administrators, prepare and obtain tribunal approval of a financial management plan (s.20) and maintain segregated records (s.50) and investment registers (s.51). Seventh, schedule automatic five-year reviews (s.28) and diarise any s.31(7) review date if capacity is not considered permanent. Eighth, for health matters, maintain a file note applying both the general principles and the health-care principles (s.34(3)). Ninth, avoid conflict transactions unless pre-authorised under s.37 and s.152; where authorisation is sought, file a conflict-transaction application with full disclosure. Tenth, if the adult regains capacity or circumstances change, apply promptly for revocation under s.31 rather than allowing the appointment to continue by inertia. Finally, maintain professional indemnity insurance that expressly covers tribunal-appointed roles, and consider obtaining tribunal directions under s.138 on any novel issue. Compliance with these steps substantially reduces the risk of removal for incompetence, compensation orders under s.59, or personal liability under s.58.
Section sec.13AAdvance appointment—guardian for restrictive practice matter
(ii) the adult’s interests will not be adequately protected.
(i) the adult’s needs will not be adequately met; or
(ii) the adult’s interests will not be adequately protected.
sec.12A Appointment—missing person
sec.12A Appointment—missing person
The tribunal may, by order, appoint an administrator for a financial matter for an adult if the tribunal is satisfied—
the adult is a missing person; and
the adult usually resides in the State; and
there is, or is likely to be, a need for a decision in relation to the matter; and
without an appointment the adult’s interests in the matter would be adversely affected.
The tribunal may be satisfied an adult is a missing person only if the tribunal is satisfied that—
it is not known if the adult is alive; and
reasonable efforts have been made to locate the adult; and
for at least 90 days the adult has not contacted—
anyone who lives at the adult’s last-known home address; or
any relative or friend of the adult with whom the adult is likely to communicate.
This Act applies, with necessary changes, to an appointment under this section.
The appointment may be on terms considered appropriate by the tribunal.
An application for the appointment of an administrator under subsection (1) may be made by—
the adult’s spouse; or
a relative of the adult; or
the public trustee; or
an interested person for the adult.
s 12A ins 2019 No. 9 s 9
(sec.12A-ssec.1) The tribunal may, by order, appoint an administrator for a financial matter for an adult if the tribunal is satisfied— the adult is a missing person; and the adult usually resides in the State; and there is, or is likely to be, a need for a decision in relation to the matter; and without an appointment the adult’s interests in the matter would be adversely affected.
(sec.12A-ssec.2) The tribunal may be satisfied an adult is a missing person only if the tribunal is satisfied that— it is not known if the adult is alive; and reasonable efforts have been made to locate the adult; and for at least 90 days the adult has not contacted— anyone who lives at the adult’s last-known home address; or any relative or friend of the adult with whom the adult is likely to communicate.
(sec.12A-ssec.3) This Act applies, with necessary changes, to an appointment under this section.
(sec.12A-ssec.4) The appointment may be on terms considered appropriate by the tribunal.
(sec.12A-ssec.5) An application for the appointment of an administrator under subsection (1) may be made by— the adult’s spouse; or a relative of the adult; or the public trustee; or an interested person for the adult.
(a) the adult is a missing person; and
(b) the adult usually resides in the State; and
(c) there is, or is likely to be, a need for a decision in relation to the matter; and
(d) without an appointment the adult’s interests in the matter would be adversely affected.
(a) it is not known if the adult is alive; and
(b) reasonable efforts have been made to locate the adult; and
(c) for at least 90 days the adult has not contacted— (i) anyone who lives at the adult’s last-known home address; or (ii) any relative or friend of the adult with whom the adult is likely to communicate.
(i) anyone who lives at the adult’s last-known home address; or
(ii) any relative or friend of the adult with whom the adult is likely to communicate.
(i) anyone who lives at the adult’s last-known home address; or
(ii) any relative or friend of the adult with whom the adult is likely to communicate.
(a) the adult’s spouse; or
(b) a relative of the adult; or
(c) the public trustee; or
(d) an interested person for the adult.
sec.12B Relationship with Public Trustee Act 1978
sec.12B Relationship with Public Trustee Act 1978
The tribunal may not appoint an administrator under section 12A for a financial matter for an adult if the public trustee is the administrator under the Public Trustee Act 1978 , section 104 (1) of the property to which the financial matter relates.
The tribunal may appoint an administrator under section 12A for a financial matter for an adult relating to property of which the public trustee is the administrator under the Public Trustee Act 1978 , section 104 (2) .
On the making of an appointment of an administrator as mentioned in subsection (2) , the public trustee ceases to be the administrator of the property under the Public Trustee Act 1978 , section 104 (2) .
s 12B ins 2019 No. 9 s 9
(sec.12B-ssec.1) The tribunal may not appoint an administrator under section 12A for a financial matter for an adult if the public trustee is the administrator under the Public Trustee Act 1978 , section 104 (1) of the property to which the financial matter relates.
(sec.12B-ssec.2) The tribunal may appoint an administrator under section 12A for a financial matter for an adult relating to property of which the public trustee is the administrator under the Public Trustee Act 1978 , section 104 (2) .
(sec.12B-ssec.3) On the making of an appointment of an administrator as mentioned in subsection (2) , the public trustee ceases to be the administrator of the property under the Public Trustee Act 1978 , section 104 (2) .
sec.13 Advance appointment
sec.13 Advance appointment
The tribunal may, by order, make an appointment of a guardian for a personal matter, or an administrator for a financial matter, for an individual who is at least 17 1 / 2 years but not 18 years if the tribunal is satisfied—
there is a reasonable likelihood, when the individual turns 18, the individual will have impaired capacity for the matter; and
there is a reasonable likelihood, when the individual turns 18—
there will be a need to do something in relation to the matter; or
the individual is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the individual’s health, welfare or property; and
there is a reasonable likelihood, without an appointment, when the individual turns 18—
the individual’s needs would not be adequately met; or
the individual’s interests would not be adequately protected.
This Act applies, with necessary changes, to an appointment under this section.
The appointment begins when the individual turns 18.
The appointment ends when the individual turns 19, unless the tribunal orders the appointment to be for a longer period.
The tribunal may order the appointment for a longer period only if the tribunal considers—
the need for an appointment will continue for the longer period; and
the need for the tribunal to review the appointment is very limited.
The longer period may be—
if the administrator is the public trustee or a trustee company under the Trustee Companies Act 1968 —the period decided by the tribunal; or
otherwise—a period of not more than 5 years.
The appointment may be on terms considered appropriate by the tribunal.
The tribunal may make the order on its own initiative or on the application of the individual or an interested person.
This section does not apply for the appointment of a guardian for a restrictive practice matter under chapter 5B .
s 13 amd 2007 No. 37 s 74 ; 2008 No. 23 s 16
(sec.13-ssec.1) The tribunal may, by order, make an appointment of a guardian for a personal matter, or an administrator for a financial matter, for an individual who is at least 17 1 / 2 years but not 18 years if the tribunal is satisfied— there is a reasonable likelihood, when the individual turns 18, the individual will have impaired capacity for the matter; and there is a reasonable likelihood, when the individual turns 18— there will be a need to do something in relation to the matter; or the individual is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the individual’s health, welfare or property; and there is a reasonable likelihood, without an appointment, when the individual turns 18— the individual’s needs would not be adequately met; or the individual’s interests would not be adequately protected.
(sec.13-ssec.2) This Act applies, with necessary changes, to an appointment under this section.
(sec.13-ssec.3) The appointment begins when the individual turns 18.
(sec.13-ssec.4) The appointment ends when the individual turns 19, unless the tribunal orders the appointment to be for a longer period.
(sec.13-ssec.5) The tribunal may order the appointment for a longer period only if the tribunal considers— the need for an appointment will continue for the longer period; and the need for the tribunal to review the appointment is very limited.
(sec.13-ssec.6) The longer period may be— if the administrator is the public trustee or a trustee company under the Trustee Companies Act 1968 —the period decided by the tribunal; or otherwise—a period of not more than 5 years.
(sec.13-ssec.7) The appointment may be on terms considered appropriate by the tribunal.
(sec.13-ssec.8) The tribunal may make the order on its own initiative or on the application of the individual or an interested person.
(sec.13-ssec.9) This section does not apply for the appointment of a guardian for a restrictive practice matter under chapter 5B .
(a) there is a reasonable likelihood, when the individual turns 18, the individual will have impaired capacity for the matter; and
(b) there is a reasonable likelihood, when the individual turns 18— (i) there will be a need to do something in relation to the matter; or (ii) the individual is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the individual’s health, welfare or property; and
(i) there will be a need to do something in relation to the matter; or
(ii) the individual is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the individual’s health, welfare or property; and
(c) there is a reasonable likelihood, without an appointment, when the individual turns 18— (i) the individual’s needs would not be adequately met; or (ii) the individual’s interests would not be adequately protected.
(i) the individual’s needs would not be adequately met; or
(ii) the individual’s interests would not be adequately protected.
(i) there will be a need to do something in relation to the matter; or
(ii) the individual is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the individual’s health, welfare or property; and
(i) the individual’s needs would not be adequately met; or
(ii) the individual’s interests would not be adequately protected.
(a) the need for an appointment will continue for the longer period; and
(b) the need for the tribunal to review the appointment is very limited.
(a) if the administrator is the public trustee or a trustee company under the Trustee Companies Act 1968 —the period decided by the tribunal; or
(b) otherwise—a period of not more than 5 years.
sec.13A Advance appointment—guardian for restrictive practice matter
sec.13A Advance appointment—guardian for restrictive practice matter
The tribunal may, by order, make an appointment of a guardian for a restrictive practice matter under chapter 5B for an individual who is at least 17 1 / 2 years but not 18 years if the tribunal is satisfied—
there is a reasonable likelihood, when the individual turns 18, the individual will have impaired capacity for the matter; and
the individual’s behaviour has previously resulted in harm to the individual or others; and
there is a reasonable likelihood, when the individual turns 18—
there will be a need for a decision about the restrictive practice matter; and
without the appointment—
the individual’s behaviour is likely to cause harm to the individual or others; and
the individual’s interests would not be adequately protected.
This Act applies, with necessary changes, to an appointment under this section.
The appointment begins when the individual turns 18.
The appointment ends—
on the day ordered by the tribunal, which must not be later than the day the individual turns 19; or
if no day is ordered by the tribunal—when the individual turns 19.
The appointment may be on terms considered appropriate by the tribunal.
The tribunal may make the order on its own initiative or on the application of any of the following—
the individual;
an interested person for the individual;
a relevant service provider;
the chief executive (disability services);
the public guardian;
if the individual is subject to a forensic order, treatment support order or treatment authority under the Mental Health Act 2016 —the chief psychiatrist.
s 13A ins 2008 No. 23 s 17
amd 2014 No. 26 s 240 (1) ; 2016 No. 5 s 923 sch 4 ; 2019 No. 19 s 81 sch 1
(sec.13A-ssec.1) The tribunal may, by order, make an appointment of a guardian for a restrictive practice matter under chapter 5B for an individual who is at least 17 1 / 2 years but not 18 years if the tribunal is satisfied— there is a reasonable likelihood, when the individual turns 18, the individual will have i
This is an opening excerpt, not the complete document.