Guardianship applications in QCAT
When a loved one loses the ability to make personal or health-related decisions for themselves, it can be an overwhelming time for families. If there’s no valid Enduring Power of Attorney in place, you may need to consider applying for guardianship through the Queensland Civil and Administrative Tribunal (QCAT). Understanding how this process works can help you make informed decisions during a difficult chapter of life.
What Is Guardianship?
Guardianship is a legal arrangement where a person (the guardian) is appointed to make personal and health-related decisions for an adult with impaired decision-making capacity. These decisions might include:
Where the adult lives
What medical treatment they receive
What support services they access
Other personal and wellbeing-related matters
Guardianship differs from financial administration, which involves decisions about money and property. In Queensland, both guardianship and administration applications are handled by QCAT, but they are distinct legal roles.
When Is a Guardianship Application Necessary?
In most cases, guardianship applications arise when there is no valid Enduring Power of Attorney in place. Some common scenarios where guardianship may be required include:
The adult has always lacked capacity and never created an Enduring Power of Attorney.
There is family conflict about who should make decisions or about the decisions being made.
An appointed attorney under an EPOA is no longer suitable or has acted inappropriately.
The attorney is unavailable, has passed away, or is no longer capable.
Urgent decisions need to be made and no one has clear legal authority.
Unfortunately, by the time a guardianship application is considered, the situation has usually become complex—often involving breakdowns in family relationships or concerns about the adult’s welfare.
Who Can Apply for Guardianship?
Applications to QCAT can be made by:
Close family members
Health professionals
The Office of the Public Guardian (in cases of concern)
In practice, it’s usually family members who apply because they want to help a parent or loved one and ensure that appropriate decisions are being made.
What Does QCAT Consider in Guardianship Applications?
When deciding whether to appoint a guardian, QCAT considers:
The adult’s best interests (the primary concern)
The adult’s current wishes and whether they can still be expressed
Whether the proposed guardian is suitable and capable
The range of options available for the adult’s care and support
Whether less restrictive alternatives (like an existing EPOA) are sufficient
Importantly, QCAT often requires medical evidence confirming that the adult lacks decision-making capacity. This helps the tribunal assess both the need for guardianship and what arrangements are in the adult’s best interests.
Navigating the Tribunal Process
Unlike some other tribunal matters, guardianship applications are typically heard by a QCAT tribunal member in a formal hearing. These members are highly experienced in dealing with capacity and adult decision-making issues.
However, the process can be emotionally taxing—especially in cases involving family disputes, differing opinions about a loved one’s care, or longstanding tensions between siblings. Families should be prepared for:
The need to gather and present clear medical evidence
Conflict and disagreement among relatives
Delays due to QCAT’s growing caseload
It’s not unusual for guardianship matters to be complex and time-consuming. With an aging population, increasing rates of dementia, and people living longer, QCAT is under significant pressure. Families should not expect a quick result.
Legal Advice Can Make a Difference
Guardianship applications should not be taken lightly. Whenever possible, it's best to explore whether an Enduring Power of Attorney can address the situation instead. If litigation becomes unavoidable, getting legal advice early can help avoid unnecessary costs and emotional strain—and keep the adult's best interests at the centre of the process.
At Vicca Law, we work with families navigating the complexities of guardianship and elder care law. If you’re considering a guardianship application or unsure about how to proceed, book a free consultation at www.viccalaw.com.au and let’s talk through your options.