The roles and responsibilities of legal guardians
A guardian is a person whose duty it is to make decisions, within specified areas, for another person. Guardianship differs from advocacy in that guardianship involves the appointment of a substitute decision-maker.
Guardians are appointed when decisions need to be made and the individual is deemed incapable of making those decisions for themselves. The appointment of a guardian is considered the least restrictive way of making those decisions.
Guardianship is designed to protect the rights and interests of adults who, for various reasons, are unable to make their own decisions about such things as:
- their health care
- other personal business.
An adult in these circumstances is described as having ‘impaired capacity’. Impaired capacity has a number of causes, such as Acquired Brain Damage (severe head injury), Alzheimer’s disease or dementia, an intellectual disability or a mental health problem.
Queensland has specific laws to help and protect adults with impaired capacity. Over the past few years, significant reforms have been made to guardianship legislation in Queensland.
The Guardianship and Administration Act 2000 (Qld) gave Queensland adults with impaired capacity the right to appoint a guardian (for personal reasons), or administrators (for financial reasons). This Act also brought into being the role of the Public Advocate, whose job it is to look at all the systems and services in place for people with impaired capacity and to bring about changes to laws, rules, regulations, policies and practices for the benefit of those adults.
Enduring Power of Attorney
In Queensland an adult has the right to give legal power to their partner or someone else: this legal power is called an enduring power of attorney. Someone who has been given that power is known as the attorney of the person with impaired capacity.
If there is a complaint about the actions of a person who has been given enduring power of attorney, the Adult Guardian can investigate the complaint. If the person is found to have behaved irresponsibly, the Adult Guardian can suspend the power of attorney and conduct an audit of the actions taken by them. If necessary, the Adult Guardian can move a person with impaired capacity who is being abused, exploited or neglected to a safe place.
The role of the Adult Guardian came into being as a result of the Powers of Attorney Act 1998. The Adult Guardian protects adults with impaired capacity by investigating reports of exploitation, abuse or neglect of a person with impaired capacity. The Adult Guardian is an independent statutory office of the Queensland Parliament.
The Child Guardian oversees services for, and decisions about, children in the care of the Department of Child Safety. This is done primarily through the Systemic Monitoring and Review Program, the Complaints Team and the Community Visitor Program.