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Legal capacity and guardianship terms

Disability Royal Commission hearings sometimes use terms that most Australians aren’t very familiar with. We’re keeping a list of these and trying to explain them in plain language. Please feel free to email us at comms@pwd.org.au if you have suggestions for words that should be included.


Guardianship and administration: A tribunal can appoint a guardian and/or administrator to make another person’s decisions about certain things.

This often happens to people with intellectual disability, dementia, acquired brain injury or similar.

An administrator only makes decisions about money and property. A guardian can make decisions in all other areas (or sometimes only a few specific areas if the tribunal says so).

Sometimes the guardian and administrator are the same person.

Another term for administration is “financial management”.

Tribunals are supposed to make sure supported decision-making (see below) gets priority over substitute decision-making, and only move on to guardianship or administration if people have tried and failed to help the person with disability to make those decisions themselves.

In practice, there often aren’t enough resources provided to give supported decision-making a real chance, or to help people improve their decision-making skills, because guardianship and administration are considered faster and cheaper.

It can be very difficult to reverse a guardianship or administration ruling once it has been made.

 

Impaired capacity:  Also referred to as “impaired decision making capacity”.

Someone with capacity is defined as a person who can:

  • understand the nature and effect of decisions about a matter,
  • freely and voluntarily make decisions about the matter and
  • communicate the decisions in some way.
    When someone is described as having ‘impaired capacity’, that doesn’t necessarily mean that they can’t make decisions.

Many adults with impaired capacity can be supported to make decisions for themselves.

The law states that people with impaired capacity have a right to adequate and appropriate support in decision-making.

 

Legal capacity: When a person has legal capacity, that means the law says they have the right to make decisions about issues that affect them like property, contracts, and jobs. They are legally allowed to do things like sign contracts for themselves, get married and vote. All adults have legal capacity by default, but in some cases the law can take away a person’s legal capacity, or say they have legal capacity in some areas but not others. See “substitute decision-making” (below), and “guardianship and administration” (above).

The Government has responsibilities under the UN Convention on the Rights of Persons with Disabilities to make sure all people with disability are fully recognised before the law, as people with full legal capacity. Governments in Australia can ensure our recognition before the law by:

  • removing any policy or practice that denies or lessens legal capacity,
  • making sure new laws recognise people with disability equally and assume our legal capacity,
  • putting supported decision-making into practice, to replace outdated models of substitute decision-making like guardianship (see below).

For more information, you can find a Legal Capacity Factsheet on the DPOA website.

 

Substitute decision-making: Substitute decision-making is when someone legally makes a decision for or instead of another person, in the same way a parent can make decisions for their child.

A legal tribunal can appoint someone to do this after deciding a person can’t make decisions on their own.

This can be just to make one particular decision, such as whether to have a certain medical treatment.

The substitute decision-making law can be slightly different in each state or territory.

You can  read more about guardianship on the CID website.

 

Supported decision-making: This is when someone supports a person to make a decision, such as by helping them to:

  • find and understand important information about the decision they need to make,
  • figure out what options they can choose between,
  • think about what might happen if they choose an option,
  • weigh up the pros and cons.

Decision-making support can come from a friend or family member, or a formal support person like an advocate or disability support worker. You can listen to a series of short podcasts about supported decision-making created by Advocacy for Inclusion.


Queensland Specific

Guardianship: Queensland’s guardianship system gives someone the legal authority to make decisions for an adult with ‘impaired capacity’ (most often a person with intellectual or cognitive disability). The appointed guardian can make certain personal and health care decisions on the adult’s behalf.

 

Mental Health Act 2016: Queenland’s Mental Health Act was passed in 2016 with 3 main aims:

  • to improve and maintain the health and wellbeing of persons who have a mental illness who do not have the capacity to consent to be treated,
  • to enable persons to be diverted from the criminal justice system if found to have been of unsound mind at the time of committing an unlawful act or to be unfit for trial, and
  • to protect the community if persons diverted from the criminal justice system may be at risk of harming others.

More about the Mental Health Act can be found here.

¹(https://trove.nla.gov.au/work/36757107)

 

QCAT: The Queensland Civil and Administrative Tribunal (QCAT) is an independent, tribunal that resolves disputes on a range of matters. QCAT can appoint a guardian on behalf of an adult with impaired decision-making capacity.

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