EJ [2026] QCAT 175

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: EJ [2026] QCAT 175 PARTIES: In an application about matters concerning EJ APPLICATION NO: GAA14996-25 MATTER TYPE: Guardianship and administration matters for adults DELIVERED ON: 26 March 2026 (ex tempore) HEARING DATE: 26 March 2026 HEARD AT: Brisbane DECISION OF: Senior Member Browne, Presiding ORDERS: APPOINTMENT OF A GUARDIAN The application by GI for the appointment of a guardian for EJ is dismissed under section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). CATCHWORDS: HEALTH LAW – GUARDIANSHIP, APPLICATION FOR APPOINTMENT OF A GUARDIAN FOR PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS – GENERAL PRINCIPLES – where an enduring power of attorney exists – where s 12 of the Guardianship and Administration Act 2000 (Qld) applies – whether the requirements of s 12 of Guardianship and Administration Act 2000 (Qld) have been met – where the individual resides in a secure area at an approved residential care home – where the individual is subject to environmental restraint and chemical restraint as defined under the Aged Care Act 2024 (Cth) and Aged Care Rules 2025 (Cth) – where the individual is receiving funded aged care services from a registered provider under the Aged Care Act 2024 (Cth) – where the registered provider is required to have the informed consent of a restrictive practices substitute decision-maker for an individual who lacks capacity to give that consent – whether the Tribunal should appoint a guardian for the individual to provide informed consent – where the presumption of capacity is rebutted – whether individual has capacity to make decisions about personal matters – whether “personal matter” as defined under schedule 2 of the Guardianship and Administration Act 2000 (Qld) includes a matter to give informed consent or withhold consent for the use of “restrictive practices” as defined under the Aged Care Act 2024 (Cth) and Aged Care Rules 2025 (Cth) – where giving informed consent to the use of environment restraint and chemical restraint is a personal -- 1 of 10 -- 2 matter as defined under schedule 2 of the Guardianship and Administration Act 2000 (Qld) – where an attorney is acting as attorney for personal and health matters – whether “personal matter” as defined under schedule 2 of the Powers of Attorney Act 1998 (Qld) includes a matter to give informed consent or withhold consent for use of restrictive practices as defined under the Aged Care Act 2024 (Cth) and Aged Care Rules 2025 (Cth) – whether the current decision- making regime under the enduring power of attorney is suitable such that there is no need for the appointment of a guardian – whether attorney under enduring power of attorney can act as restrictive practices substitute decision- maker – whether the application should be dismissed under s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION – where the Tribunal considered whether the decision is compatible with human rights – where the Tribunal recognises the adult’s relevant human rights – whether human rights are limited and engaged – whether the limits imposed on the relevant human rights are reasonable and justified Aged Care Act 2024 (Cth), s 10, s 15, s 17, s 18, s 23, s 162 Aged Care Rules 2025 (Cth), s 6-20, s 14-1, s 17-5, s 162- 15, s 162-45 Disability Services Act 2006 (Qld) Disability Regulations 2017 (Qld), s 12 Guardianship and Administration Act 2000 (Qld), s 5(d), s 10, s 11, s 11B, s 12, s 114A, s 115, s 118, schedule 2 and 4 Human Rights Act 2019 (Qld), s 13 Powers of Attorney Act 1998 (Qld), s 6C, s 67, s 77, schedule 2 and 3 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47 Queensland Civil and Administrative Rules 2009 (Qld) NJ [2022] QCAT 283 APPEARANCES & REPRESENTATION: Adult: EJ Applicant: GI, attorney and wife of EJ Office of the Public Guardian: R McPhillips -- 2 of 10 -- 3 REASONS FOR DECISION [1] SENIOR MEMBER BROWNE: EJ is a 90 year old man living in residential care and has a continuing need for aged care services. [2] EJ’s accommodation setting is an approved residential care home regulated by the Aged Care Act 2024 (Cth) and Aged Care Rules 2025 (Cth) (the Aged Care Rules).1 EJ has an enduring power of attorney dated the 28 of July 2023 appointing his wife, GI, as his attorney for personal, health and financial matters. As provided in the enduring document, in the event GI’s appointment as attorney is revoked or cancelled, then the Public Guardian is appointed for personal and health matters and the Public Trustee of Queensland is appointed for financial matters. [3] EJ has diagnosed cognitive impairment related to dementia. Medication, risperidone, is prescribed to manage EJ’s behavioural and psychological symptoms of dementia: agitation, aggression and restlessness. [4] EJ lives in a secure memory unit that restricts his free access to all parts of his accommodation because he can get disorientated and confused and, during such time, may wander around corridors and can go into other residents’ rooms. This puts EJ at risk of harm to himself and to others due to conflict with other residents, and EJ’s own safety in the event that he exits the facility without assistance and support. [5] It is necessary for the registered provider of aged care services to obtain EJ’s informed consent to stay in the secure memory unit and to take prescribed medication, risperidone, to manage behaviours or, if EJ is found to lack capacity to give that consent, then the restrictive practice substitute decision-maker for the restrictive practice.2 This is because the Aged Care Act 2024 (Cth) and the Aged Care Rules regulate the use of any practice or intervention that has the effect of restricting the rights or the freedom of movement of an individual who is receiving funded aged care services in an approved residential care home.3 [6] Living in a secure memory unit is an “environmental restraint” under the Aged Care Rules because it is a practice or intervention that restricts an individual’s free access to all parts of the individual’s environment for the primary purpose of influencing the individual’s behaviour.4 Further, taking medication, risperidone, to manage behaviour is a “chemical restraint” under the Aged Care Rules because it is a practice or intervention that involves the use of medication for the primary purpose of influencing the individual’s behaviour.5 1 Aged Care Act 2024 (Cth), s 10. 2 Aged Care Act 2024 (Cth), s 18(1)(f) requires that informed consent is given to the use of a restrictive practice in relation to an individual. Section 18(2) provides that the rules may make provision for who may give informed consent to the use of a restrictive practice in relation to an individual to whom a registered provider is delivering funded aged care services if that individual lacks capacity to give that consent. See also the requirements relating to the use of restrictive practices under the Aged Care Rules 2025 (Cth), s 162-15. See s 162-15(1)(f) that requires informed consent to the use of the restrictive practice and how it is to be used (including its duration, frequency and intended outcome), has be given by the individual; or if the individual lacks the capacity to give that consent- the restrictive practices substitute decision-maker for the restrictive practice (see s 6-20 for the meaning of “restrictive practice substitute decision-maker”). 3 Aged Care Act 2024 (Cth), s 18, s 162. See also the Aged Care Rules 2025 (Cth). 4 Aged Care Act 2024 (Cth), s 17 and see s 17-5 of the Aged Care Rules 2025 (Cth) for the meaning of “environmental restraint”. 5 Aged Care Act 2024 (Cth), s 17 and see s 17-5 of the Rules for the meaning of “chemical restraint”. -- 3 of 10 -- 4 What is the application or matter before the Tribunal? [7] The application before the Tribunal today is for the appointment of a guardian under section 12 of the Guardianship and Administration Act 2000 (Qld). It is proposed that EJ’s wife, GI, be appointed as guardian to make decisions. In proceeding today, the Tribunal is satisfied that notice of hearing has been given to EJ as required under the Guardianship and Administration Act.6 [8] Relevant to the application today is information provided in the hearing by the care manager of the residential care home where EJ resides. The care manager told the Tribunal there is an organisational directive to apply to the Tribunal for the appointment of a guardian substitute decision-maker to give consent for restrictive practices under the Aged Care Act 2024 (Cth) and Aged Care Rules even if an enduring power of attorney is in place. Further, the majority of the 37 [related aged care facilities] are based in New South Wales (NSW), and this is the process followed in NSW. There are only two [related] facilities in Queensland. [9] The issues to be decided by the Tribunal today are: 1. Does EJ have capacity to make decisions about his “personal matters”? 2. Does a “personal matter” as defined under schedule 2 of the Guardianship and Administration Act 2000 (Qld) include a matter to give informed consent or withhold consent for the use of “restrictive practices” as defined under the Aged Care Act 2024 (Cth) and Aged Care Rules 2025 (Cth)? 3. Is there a need for decisions to be made about EJ’s personal matters? 4. Is the current decision-making regime under the enduring power of attorney suitable such that there is no need for the appointment of a guardian? [10] In addressing issue 4 above, will require the Tribunal to also consider whether a “personal matter” as defined under schedule 2 of the Powers of Attorney Act 1998 (Qld) includes a matter to give informed consent or withhold consent for the use of restrictive practices under the Aged Care Act 2024 (Cth) and Aged Care Rules 2025 (Cth). [11] In relation to the application for the appointment of a guardian, the Tribunal is required to consider section 12 [of the Guardianship and Administration Act], that gives the Tribunal the power to, by order, appoint a guardian for a personal matter if satisfied as to the matters under section 12, such as, and amongst other things, whether the person referred to as the adult has impaired capacity for the matter, whether there is a need for a decision in relation to the matter; and without an appointment, the adult’s needs will not be adequately met; or the adult’s interests will not be adequately protected. [12] Chapter 5B under the Guardianship and Administration Act contains relevant provisions about restrictive practices in Queensland and applies to a particular cohort of persons who receive disability services from a relevant service provider. Chapter 5B and the Disability Services Act 2006 (Qld) do not apply if the adult is approved 6 Guardianship and Administration Act 2000 (Qld), s 118. -- 4 of 10 -- 5 under the Aged Care Act 2024 (Cth) to access funded aged care services for the service group “residential care” as provided under the Disability Regulations 2017 (Qld), s 12. [13] Importantly, for a matter involving restrictive practices in the aged care sector and appointing a guardian under section 12 of the Guardianship and Administration Act, is an earlier decision of this Tribunal: NJ [2022] QCAT 283. [14] NJ is authority for appointing a guardian under section 12 of the Guardianship and Administration Act as a restrictive practices substitute decision-maker to make decisions about a personal matter, to give informed consent or withhold consent for the use of relevant restrictive practices with conditions, as defined under the Aged Care Act (Cth) and Quality of Care Principles 2014 (Cth) that applied at the time. Since NJ’s case, the Aged Care Act 2024 (Cth) and the Aged Care Rules 2025 (Cth) apply. Does EJ have capacity to make decisions about his “personal matters”? [15] Turning now to the question of capacity to make decisions, EJ is presumed to have capacity for a matter until the contrary is proven.7 As provided under the Guardianship Act8 and the Powers of Attorney Act 1998 (Qld)9, capacity, for a person for a matter means the person is capable of- (a) understanding the nature and effect of decisions about the matter; and (b) freely and voluntarily making decisions about the matter; and (c) communicating the decisions in some way. [16] Under the Guardianship and Administration Act, a matter includes “types of matter”.10 [17] A “personal matter” is defined under Schedule 2, Part 2 of the [Guardianship and Administration] Act and provides a “personal matter, for an adult, is a matter, other than a special matter or special health matter, relating to the adult’s care, including the adult’s health care or welfare, including for example a matter relating to one or more of the following-…” as listed under (a) to (m). This includes, for example, and amongst other things, where the adult lives, services provided to the adult, health care of the adult and a restrictive practice matter under chapter 5B. Does a “personal matter” as defined under schedule 2 of the Guardianship and Administration Act 2000 include a matter to give informed consent or withhold consent for the use of “restrictive practices” as defined under the Aged Care Act 2024 (Cth) and Aged Care Rules 2025 (Cth)? [18] In NJ, the Tribunal considered whether the lack of express mention of non-chapter 5B restrictive practices in the definition of “personal matter” [under the Guardianship and Administration Act] exclude them from being a “personal matter”.11 7 Guardianship and Administration Act 2000 (Qld), s 11, s 11B. 8 Guardianship and Administration Act, schedule 4. 9 Powers of Attorney Act 1998 (Qld) Schedule 3, s 3. 10 Guardianship and Administration Act 2000 (Qld), s 10. 11 NJ [2022] QCAT 283, [43]. -- 5 of 10 -- 6 [19] The Tribunal considered the definition of “personal matter” and, amongst other things, the term “relating to” as used in the definition, to find that these words are of wide import. Further, NJ observed that the definition uses “including” twice, indicating that “personal matters” is not limited to a matter expressly included within the definition.12 [20] NJ found, and I agree, that the language used in “personal matter” is indicative of an intention that the provision be read broadly. Further, the absence of express reference to non-chapter 5B restrictive practices from the examples included within the definition of “personal matter” at subparagraph (a) to (m) does not mean that non- chapter 5B restrictive practices cannot be regarded as a personal matter.13 It will depend on whether or not the matter falls within a matter relating to the adult’s care, including the adult’s health care or welfare. [21] The word “welfare” is not defined in the Guardianship and Administration Act. [22] As considered in NJ, using the Oxford Dictionary meaning of “welfare” means, “the general health, happiness and safety of a person”.14 [23] In the present matter, as was the case in NJ, there is evidence before the Tribunal that restrictive practices are necessary for EJ’s safety. The Tribunal finds that there is a direct relationship between the matter [restrictive practices] and the welfare of EJ and is a matter relating to his welfare and, therefore, to his care within the meaning of “personal matter”. [24] Decisions need to be made about whether EJ should reside in a secure area known as the secure memory unit and to take medication prescribed for behaviour management. As detailed in the behaviour support plan filed with the application, it is necessary for EJ to live in the secure unit for his safety.15 There is a history of EJ wandering into other residents’ room, and this has led to physical conflict, and if EJ is left to wander to other areas such as the garden without assistance, there is a risk to EJ’s safety. [25] As reported by Dr Huynh, in the health professional report, medication prescribed, risperidone, is for behaviour management. Risperidone has side effects. The medication may contribute to sedation, reduce concentration, which can further impair decision-making. Dr Huynh reports that the medication is prescribed to manage behavioural and psychological symptoms of dementia and the restrictive practices are necessary for EJ’s safety and to prevent harm. [26] The decisions to live in a secure unit and to take prescribed medication for the purpose of managing behaviour are complex decisions because it requires informed consent to be given by the individual (EJ). This requires EJ to understand the need for living in the secure unit, taking the medication, including, and amongst other things, why the practice or intervention is necessary for his safety and to ensure that staff can continue to support EJ. 12 NJ, [43]. 13 NJ, [44]. 14 NJ, [44]. 15 See Aged Care Act 2024 (Cth), s 18 (restrictive practice requirements) and the requirements relating to the use of restrictive practices under the Aged Care Rules 2025 (Cth), s 162-15. Section 162-15 requires the use of restrictive practice complies with any provisions of the behaviour support plan for the individual that relate to the use of the restrictive practice (s 162-15(1)(h)). See s 162-45 for the requirements relating to behaviour support including for behaviour support plans. -- 6 of 10 -- 7 [27] The Tribunal accepts the medical evidence of Dr Huynh, who reports that EJ has cognitive impairment related to dementia and is unable to make decisions about his personal matters. [28] The Tribunal finds that the presumption of capacity for personal matters, that includes more broadly decisions about whether to give informed consent or withhold such consent for the use of “environmental restraint” and “chemical restraint” as defined under the Aged Care Act 2024 (Cth) and Aged Care Rules 2025 (Cth), is rebutted. Is there a need for decisions to be made about EJ’s personal matters? [29] Services known as “residential care” are delivered to the accommodation setting where EJ resides and staff support EJ in activities of daily living. [30] EJ lives in a secure memory unit because he has wandering behaviours due to his diagnosed dementia. [31] EJ is taking medication prescribed to manage his behaviours. The medication is given to EJ by staff, who support him daily. [32] The Tribunal is satisfied that there is a need for decisions to be made about whether EJ should reside in a secure unit and to take medication to control these behaviours and that these practices or interventions are restrictive practices for which the Aged Care Act 2024 (Cth) and Aged Care Rules apply. Is the current decision-making regime under the enduring power of attorney suitable such that there is no need for the appointment of a guardian? [33] There is a decision-making regime put in place by EJ to appoint his wife under an enduring power of attorney as his attorney to make decisions about his personal and health matters. [34] As already considered by the Tribunal today, NJ is authority for finding that, for a personal matter under the Guardianship and Administration Act, is to be read broadly, meaning that it relates to the person’s care and welfare. Further, this may, more broadly, include restrictive practices that are necessary for the safety of the person. [35] In my view, NJ is instructive in interpreting the meaning of “personal matter” as defined under the Powers of Attorney Act 1998 (Qld) to more broadly include the person’s care and welfare. [36] The definition of “personal matter” under the Powers of Attorney Act, save for some slight differences in the examples included at subparagraph (a) to (k) that do not include a restrictive practice matter under chapter 5B, effectively mirrors the definition of “personal matter” under the Guardianship and Administration Act. [37] As observed by the Tribunal in NJ, had the legislature wanted to exclude non-chapter 5B matters from the definition of “personal matter”, it could easily have done so expressly.16 [38] The approach taken by this Tribunal in following NJ in the interpretation of “personal matter” under the Guardianship and Administration Act is to be applied when interpreting the definition of “personal matter” under the Powers of Attorney Act. The meaning of “personal matter” under the Powers of Attorney Act is to be read broadly, 16 NJ, [92]. -- 7 of 10 -- 8 such that it relates to the person’s care and welfare to include their general health, happiness and safety. [39] The absence of express reference to restrictive practices from the examples included at subparagraphs (a) to (k) in the definition of “personal matter” under the Powers of Attorney Act does not mean that restrictive practice matters regulated by the Aged Care Act 2024 (Cth) and the Aged Care Rules cannot be regarded as a “personal matter” as defined under the Powers of Attorney Act. [40] As observed in NJ, it will depend on whether or not the matter falls within a matter relating to the adult’s care, including the adult’s healthcare or welfare. [41] In the present matter, there is evidence before the Tribunal about the need to use practices and interventions for EJ’s safety. There is a direct relationship between the matter, meaning the use of restrictive practices and the safety and welfare of EJ that more broadly falls within the meaning of EJ’s “personal matter” as defined under the Powers of Attorney Act. [42] The restrictive practices, such as environmental restraint to restrict EJ’s free exit from the secure unit unsupervised is necessary to ensure EJ’s welfare and safety. Further, the medication, risperidone, prescribed and given to EJ by staff is necessary to manage EJ’s behaviours due to his diagnosed dementia, including agitation, aggression and restlessness. [43] Decisions, including whether to give informed consent or withhold such consent for the use of chemical restraint and the use of environmental restraint is necessary to ensure EJ’s welfare and safety. [44] The list of personal matters under schedule 2, section 2 of the Powers of Attorney Act 1998 (Qld) is not exhaustive. It should be construed broadly to include to give informed consent or to withhold such consent, for the use of relevant restrictive practices, as defined under the Aged Care Act 2024 (Cth) and Aged Care Rules 2025 (Cth). [45] Further, there is a need for a substitute decision-maker because EJ does not have capacity to make decisions about the use of restrictive practices as defined under the Aged Care Act 2024 (Cth) and Aged Care Rules. [46] In the present matter, EJ’s wife, GI, has been acting as his attorney under an enduring power of attorney since about May 2025. Importantly, EJ’s wife, is prepared to continue acting in the role. [47] An attorney who may exercise a power under a document must, when exercising the power, exercise it subject to the terms of the document, as stated under section 67 of the Powers of Attorney Act. Further, to the extent an enduring document does not state otherwise, an attorney is taken to have the maximum power that could be given to the attorney by the enduring document (s 77). [48] In the present matter, EJ’s wife is appointed as attorney for personal and health matters and is taken to have the maximum power that could be given for personal and health matters. [49] The Tribunal has found that the definition of “personal matter” under the Powers of Attorney Act is to be read broadly, meaning that it relates to the person’s care and welfare, to include the general health, happiness and safety of the person. Further, the -- 8 of 10 -- 9 definition of “personal matter” should be construed broadly to include to give informed consent or withhold such consent for the use of the relevant restrictive practice as defined under the Aged Care Act 2024 (Cth) and Aged Care Rules 2025 (Cth). [50] In the present matter, the attorney, under the enduring power of attorney has the power to make decisions about EJ’s personal matters that means his care and welfare including whether to give informed consent or withhold such consent for the use of restrictive practices as defined under the Aged Care Act 2024 (Cth) and Aged Care Rules 2025 (Cth). [51] There is no need for the appointment of a guardian under section 12 of the Guardianship and Administration Act because the current attorney appointed under the enduring power of attorney is available to make decisions about EJ’s personal matters as the restrictive practices substitute decision-maker. [52] In exercising the powers under the enduring power of attorney, the attorney is required to apply the general principles that include, amongst other things, recognising the adult’s inherent dignity and worth and the rights of adults to the same human rights and fundamental freedoms regardless of the particular adult’s capacity.17 [53] The Aged Care Act 2024 (Cth) and Aged Care Rules 2025 (Cth) also reflect relevant rights of the individual, such as the statement of rights that underpin the quality of standards for delivery of care services.18 All registered providers of care are subject to the quality of standards and [code of conduct] for rights. For the use of restrictive practices, the Aged Care Act 2024 (Cth) and Aged Care Rules 2025 (Cth) contain responsibilities of a registered provider to meet aged care quality standards.19 [54] There is no evidence before the Tribunal to suggest the current decision-making regime, being the enduring power of attorney, is no longer appropriate or that the attorney is unable to make decisions about EJ’s personal matters. [55] The Tribunal is satisfied that the attorney is available to give informed consent or withhold such consent for EJ’s personal matters that includes the use of restrictive practices as defined under the Aged Care Act 2024 (Cth) and Aged Care Rules 2025 (Cth) where such consent is necessary for the sole purpose of EJ’s welfare and safety. [56] It is appropriate to initiate an application to dismiss the application for the appointment of a guardian under section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) on the basis that the application is misconceived. If there is a change in EJ’s circumstances, an application can be made at any time.20 [57] In making final orders today to dismiss the application, the Tribunal is required to make the least restrictive order. Further, the Tribunal is required to apply the general principles and to identify relevant human rights under the Human Rights Act 2019 (Qld) that are limited and engaged. 17 Powers of Attorney Act 1998 (Qld), s 6C. 18 Aged Care Act 2024 (Cth), s 15 (Aged Care Quality Standards), s 23 (Statement of Rights) and s 162 (Restrictive Practices). See Aged Care Rules, s 14-1 (Aged Care Code of Conduct). 19 Ibid. 20 See Guardianship and Administration Act, s 115 for making an application and Queensland Civil and Administration Rules 2009 (Qld) requirements for filing an application. -- 9 of 10 -- 10 [58] The Tribunal is satisfied that there is a decision-making regime in place for EJ and that his attorney has the power to make decisions about his personal matters, there is no need for the appointment of a guardian, and the application is to be dismissed. The Tribunal is satisfied that the order today is reasonable and justified in accordance with section 13 of the Human Rights Act 2019 (Qld). [59] The order made today is the least restrictive based on the evidence before the Tribunal.21 [60] The order is that the application by GI for the appointment of a guardian for EJ is dismissed under section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). [61] The Tribunal directs that a transcript of the reasons given today be obtained as a matter of priority and be placed on the file, and the Tribunal’s reasons be published in a de- identified format in accordance with the protection afforded in relation to non- publication about a guardianship proceeding that discloses the adult’s identity under s 114A of the Guardianship and Administration Act. Thank you, everyone, for attending today. 21 Guardianship and Administration Act, s 5(d). -- 10 of 10 --