Rules for guardianship in Queensland

Part of the Powers of Attorney and guardianship topic

Understand the rules you must follow when making decision on behalf of adults who lack capacity to make decisions for themselves.

In short

The rules on guardianship in Queensland are set out in the:

The laws aim to:

If you don’t follow these rules, there may be legal consequences. This can include compensation orders or removal from a decision-making role.

When making guardianship decisions you must:

Presume an adult has decision-making capacity unless proven otherwise.
Apply the guiding principles of guardianship decisions making when making decisions or using your power.
Use the enduring power of attorney and advance health directive forms (introduced on 30 November 2020).
Make sure the adult making an enduring document (enduring power of attorney or advance health directive) understands the document and signs it voluntarily, without pressure.
Get approval from a court or tribunal before entering a conflict transaction as an attorney or administrator.
Follow the Queensland Civil and Administrative Tribunal or Supreme Court orders. This includes orders to pay compensation or provide records and audited accounts.
Make sure attorneys meet eligibility requirements, including
- having capacity for the role
- not being a paid carer for the adult (in past 3 years
- not being a service provider for a residential service where the adult lives (for advance health directives)
Appoint no more than 4 joint attorneys.
Appoint an administrator if an adult is missing and their finances are at risk. Apply to the Queensland Civil and Administrative Tribunal.

When making guardianship decisions you cannot:

Enter into a conflict transaction as an attorney or administrator without prior approval from the principal, or a court or a tribunal.
Use old enduring power of attorney or advance health directive forms, that were replaced by new forms on 30 November 2020.
Appoint more than 4 joint attorneys for the same matter.
Appoint an attorney who has been a paid carer for the adult in the past 3 years.
Appoint an attorney who is a service provider for a residential service where the adult lives (for advance health directives).

There are some exceptions to these rules:

You can change the presumption of capacity if the Queensland Civil and Administrative Tribunal or the Supreme Court has already appointed a guardian or administrator for a specific matter.
You can enter into a conflict transaction if the principal has authorised it in the enduring power of attorney or if it is approved by a court or tribunal.
You can recognise interstate or New Zealand enduring powers of attorney if they would be valid under Queensland law.
You can appoint an administrator for a missing adult to manage their financial interests. This appointment ends if the adult is found alive or declared deceased under the law.