Impaired capacity refers to a person's ability to make a sound decision in a particular area of their life.
Impaired decision-making capacity may be due to an intellectual disability, acquired brain injury, mental illness, dementia or some other cause.
Queensland law recognises an adult's right to control their own lives. People are presumed to have capacity to make decisions for themselves unless incapacity is established.
Indications of impaired capacity
In order for a person to have capacity to make a decision, a person must:
- understand the nature and effect of the decision
- be making the decision freely and voluntarily, and
- be able to communicate the decision in some way.
If a person does not demonstrate sufficient ability to do this, it is advisable to seek further clarification from the person’s carer, family, friend or health professional as to whether an attorney, guardian or administrator has been appointed. The Guardianship and Administration Tribunal can also provide advice. Care should be taken not to assume impaired capacity on limited evidence or brief encounters.
Assistance for people with impaired capacity
The Guardianship and Administration Act 2000 and the Powers of Attorney Act 1998 recognise that most decisions for lifestyle matters can be made for adults with impaired capacity on an informal basis by members of the adult’s existing support networks. Informal financial arrangements, such as being appointed as an independent nominee (family member or close friend) for a person’s pension, may be sufficient to deal with the person’s financial matters.
Appointment of an attorney
An adult with impaired capacity may have appointed an attorney under the Powers of Attorney Act 1998. An attorney may be authorised to make decisions on behalf of the adult regarding health, personal and financial matters depending on the nature of the appointment.
Appointment of a guardian and/or administrator
The Guardianship and Administration Act 2000 provides for the appointment of guardians (for personal matters) and/or administrators (for financial matters). An application can be made to the Guardianship and Administration Tribunal to determine if a person with impaired decision-making capacity needs a guardian or administrator appointed.
Impaired capacity and entering into a Rooming accommodation agreement
A tenant's impaired capacity may affect their ability to understand, negotiate and sign a Rooming accommodation agreement (Form R18). In these cases a written agreement with special conditions may not be enforceable. However the standard conditions under the Act apply, even if a written agreement is not in place.
On the rooming accommodation agreement, the tenant can nominate a person as a representative to receive copies of any notices relating to the agreement (e.g. a tenant may nominate a carer/case manager to receive breaches notices). This can be an informal arrangement.
The property manager/owner is required to issue a copy of the notice to the tenant and their representative, who will help ensure the tenant understands the matter.
Adult Guardian 1300 653 187
Public Trustee of Queensland 1300 360 044
QCAT (for guardianship and administration matters) 1300 753 228