Public trustees and public guardians in Queensland

What are public trustees and public guardians?

Public trustees and public guardians are independent statutory authorities that provide services that help people – particularly vulnerable people – to manage their personal affairs. Every state and territory in Australia has a public guardian and a public trustee, although they may have different titles. They are independent statutory officers appointed under state government legislation, and the offices they run are state government agencies.

• What is a public trustee? It’s an organisation that protects people’s financial interests by providing services like assisting them with making wills and powers of attorney. Generally, a public trustee can be appointed to look after financial and property decision-making for someone who has lost their capacity to make those decisions themselves.

• What is a public guardian? This term often refers to both the office and the official, who support people with impaired decision-making capacity and help to protect their interests. If the official is appointed as guardian for someone who has lost capacity, their team members manage the person’s personal, lifestyle and/or health decisions. They may also be able to investigate allegations of abuse or neglect of older people who have lost decision-making capacity.

In Queensland, the Public Trustee and the Office of the Public Guardian (sometimes called ‘the OPG’) are two separate organisations. In other states and territories, they may be combined into one office, and they may have different names.

Different kinds of guardianship appointments

There are two types of guardianship appointments that can assist older people:

• One you make yourself. You can appoint your own choice of future decision-maker(s) under a formal document like an Enduring Power of Attorney. This can only be done while you still have decision-making capacity.

• One made for you. If you lose capacity and have not formally appointed your own future decision-makers, someone can be appointed for you by an authorised and specialist organisation, such as an administrative tribunal.

This article talks about guardians who are appointed for you if you need one but haven’t appointed one yourself.

To find out more about appointing your own substitute decision-makers while you still have capacity, see our Enduring Powers of Attorney section.

What is a guardian?

A guardian is a substitute decision-maker: someone authorised to make decisions for another person who is unable to decide for themselves. Guardians are authorised by law to make some or all decisions on the person’s behalf, and they should always act in the person’s best interests.

Often, someone who knows the person well becomes their guardian – a family member, for example – but sometimes a public office, like the Office of the Public Guardian, is appointed.

More about guardians

• Guardianships in Queensland cover different types of decisions and have different names. In this article, ‘guardian’ is sometimes used to refer to any kind of appointed decision-maker.

• In Queensland, a ‘guardian’ is a decision-maker appointed for personal, lifestyle, health and medical, and some legal matters. A decision-maker appointed for financial decisions is called an ‘administrator’.

• You can read more about guardianships in our Introduction to guardianships in Australia section.

How are guardians appointed in Queensland?

If you start to have difficulty making decisions, there may be someone – like a close family member or friend – who can step in and help you manage things. If they make decisions for you, it’s called ‘informal decision-making’. As long as this arrangement is working well, there may be no need for a formal guardianship appointment.

If there is no informal decision-maker, or the informal arrangement isn’t working well, someone involved in your life can ask to have a guardian formally appointed for you. They do this by applying to the state’s administrative tribunal.

Both formal and informal decision-makers should try to help you make any decisions that you can. This is called ‘supported decision-making’.

What does ‘supported decision-making’ mean?

Supported decision-making means your helper empowers you to make your own decisions wherever you can by providing you with whatever you need to do so. For example, your decision-making supporter could:

• explain information, so you are able to make the decision

• get you a translator, so you can understand information thoroughly

• go with you to the doctor to write down what they say, so you can remember it later and decide what to do.

You can find out more about this in our article, Supported decision-making.

The role of the Queensland Civil and Administrative Tribunal (QCAT)

An administrative tribunal is like a court that decides minor disputes and administrative matters. It operates under state legislation, and the decisions it makes are called ‘orders’. QCAT operates under the Guardianship and Administration Act 2000 (Qld) and other legislation. One of the administrative matters it can decide is guardianships.

The role of QCAT in guardianships is to consider applications to have a guardian appointed for you if you can’t make decisions for yourself. Someone who is concerned about you can apply to the tribunal, either to be formally appointed as your guardian themselves or to have someone else appointed. A guardian must have legal capacity and be aged 18 or over to be appointed.

The tribunal will hold a hearing to determine whether there is a genuine need for a guardian to be appointed, consider who could be appointed, and decide how the guardianship would work best.

QCAT will keep your best interests in mind when deciding on the application and try to decide an outcome that’s focused on protecting or fulfilling your needs. They will think about what’s important to you, what your family or carers think should happen, and what all the options are.

Usually, they will first try to find an individual person who knows you well and would be an appropriate guardian, such as a family member, friend or carer. A trustee company may also be considered, and more than one guardian may be appointed.

• Watch the videos on this webpage to see what happens at a typical QCAT guardianship hearing.

Sometimes, it’s not possible for QCAT to appoint an individual person as your guardian or administrator. They may be unable to find someone available, suitable and willing, or there may be a dispute between your family, friends or carers over who your guardian should be.

In cases like these, the tribunal may appoint a public office such as the Office of the Public Guardian to be your ‘guardian of last resort’ (for personal, lifestyle, some legal, health or medical decisions) or the Public Trustee as your administrator (for decisions about your property and finances).

In deciding a guardianship application, the tribunal will make the least restrictive order possible for you and your circumstances.

The role of the Public Trustee of Queensland

The Public Trustee can help vulnerable people with the management of their financial and property affairs. In a guardianship matter, they may be appointed by QCAT as your administrator. The role of the Public Trustee is to help ensure that any financial and property decisions made for you promote and safeguard your rights, interests and opportunities.

A dedicated Public Trust Officer will be assigned to you. They will try to keep your best interests in mind and consider your wishes and preferences, as far as they can determine what those are.

As much as possible, they will work with you in making your decisions. If it’s appropriate, they will also talk to your family, friends and carers to get their views on how your decisions should be made.

The role of the Office of the Public Guardian

The Office of the Public Guardian in Queensland promotes and protects the rights and interests of people with disabilities, including impaired decision-making capacity. If appointed by QCAT, they will assign a team member as ‘delegate guardian’ for someone who can’t make their own decisions.

Like the Public Trustee, the Office of the Public Guardian will try to make decisions that are in your best interests and that respect your will and preferences. They will work with you and, if appropriate, your family and carers in making your decisions.

What matters can a guardian decide?

Queensland guardianships are covered by the Guardianship and Administration Act 2000 (Qld), which sets out the matters that guardians may manage for you.

In Queensland guardianships, financial and property matters are considered separately from general medical, lifestyle, personal and other legal decisions. The person appointed for decisions about financial and property matters is called an ‘administrator’.

If the Public Trustee or Office of the Public Guardian is appointed to help you, they will need to get some information about you and what’s happening in your life, what decisions need to be made, and what your options are. They will talk to you and to your carers to gather the information and find out what everyone thinks would be best for you. The information will be kept private.

If you (or someone else) are unhappy with the Public Trustee’s service, you can make a formal complaint. You can lodge the complaint by email, phone or online form, and you should receive an acknowledgement within 3 days. The complaint will be kept confidential, and you can expect an outcome within 30 days. For information about the complaints process, visit the Public Trustees’ How we manage feedback webpage.

If you (or someone else) believe that the Office of the Public Guardian made a decision based on incorrect or incomplete information, you can talk to the person who made the decision about this. You can also talk to the officer or write to their manager if you disagree with a decision they made. Further information is on the Disputing a decision made by the OPG webpage.

Financial and property decisions

Examples of financial decisions the Public Trustee, as your administrator, can make include:

• managing pensions and other benefits

• paying your accounts and bills

• approving spending of your money

• completing tax returns.

For details of how the Public Trustee can act as your administrator and what they can do to help you, visit the What is financial administration? webpage.

Personal and lifestyle decisions

Examples of personal and lifestyle decisions the Public Guardian, as your guardian, can make include:

• where you live

• what care services you receive

• what other kinds of services you receive.

Health care and medical decisions

Examples of health care and medical decisions the Public Guardian, as your guardian, can make include:

• whether to consent to medical treatment, and which ones

• what dental treatment you receive

• when to advocate for your care, services and treatment.

There are some medical decisions the Public Guardian cannot make for you.

What are a guardian’s responsibilities?

Queensland law requires your guardian to act in ways that are in your best interest and to consider and respect your wishes and preferences. The Public Trustee and the Public Guardian will both do everything possible to act according to this requirement. To do so, they will need to gather information about you, your preferences and options, and the decisions that need to be made. The information they collect will be kept private.

The Public Trustee and the Public Guardian will keep records of the transactions and decisions they make for you. A private guardian should do the same.

Most importantly, guardians can only decide matters they are authorised to decide. Administrators can’t make decisions about your lifestyle or medical options, and guardians can’t make financial decisions. The Public Guardian can’t make financial decisions for you, and the Public Trustee can’t make personal decisions for you.

Information for guardians

Guardians can find out more about their role and responsibilities on our Being a guardian webpage.

You can also read this Queensland Government fact sheet, ‘General principles and health care principles under Queensland’s guardianship framework’ (PDF, 261 KB)

Ending or changing a guardianship

QCAT will set the term of a guardianship for a length of time that it considers appropriate for the circumstances. The tribunal will usually review a guardianship order at least every 5 years, or more frequently depending on the terms of the order.

People involved with you may also request a review of a guardianship order. This may happen if your circumstances change or if there is concern that your appointed guardian isn’t acting in your best interests.

Your guardianship appointment ends naturally when you die.

More information and resources

Queensland Civil and Administrative Tribunal
Decides applications for guardianships of adults with impaired decision-making capacity.

Tel: 1300 753 228 (8.30 am to 3 pm Monday to Thursday, 8.30 am to 12 pm Friday, except public holidays)

Enquiries via online form: Click here

Website: Click here

Office of the Public Guardian

Protects the rights, interests and wellbeing of vulnerable people in Queensland.

Tel: 1300 653 187 (9 am to 4 pm Monday to Friday)

Email: publicguardian@publicguardian.qld.gov.au

Website: Click here

Public Trustee of Queensland

An independent service for advancing and safeguarding the rights, interests and wishes of Queenslanders in need of trustee support.

Tel: 1300 360 044 or 1800 512 421 (9 am to 5 pm Monday to Friday, except last Wednesday of the month: open 9.30 am)

Email: clientenq@pt.qld.gov.au

Website: Click here

Seniors Legal and Support Service (SLASS)

A Legal Aid Queensland network of community legal centres, SLASS provides free legal and social work support to older people who are experiencing abuse, mistreatment or financial exploitation.

Website: Click here

Other useful resources

‘What’s the difference between the Office of the Public Guardian and the Public Trustee?’ (PDF, 227KB)

This leaflet explains the key differences between the roles of these two Queensland public offices.

‘Understanding Queensland’s guardianship and administration system’ (PDF, 1.2 MB)

This Office of the Public Guardian brochure is a great summary of information about guardianship and administration in Queensland.

Disclaimer: The information provided on this website is not a substitute for individual legal advice.