Legal capacity

What is legal capacity?

Legal capacity is the ability to:

• make a binding legal agreement
• sue another person
• make other legal decisions.

To have legal capacity you must be able to understand the significance of what you’re doing.

Assessing legal capacity is different for every situation. You may have capacity for some types of legal decisions and not others.

Children and legal capacity

The parents of children under 18 are usually considered their legal guardians, and are responsible for their long-term wellbeing including making decisions about their religion and schooling.

As legal guardians, parents may be required to sign on behalf of their children who are under 18.

In some situations children can have legal capacity to act on their own behalf. If they are able to understand the significance of what they are doing they may be able to make a binding contract for the necessities of life or they can make decisions about their own medical treatment.

Each legal situation should be assessed individually, and you should get legal advice.

Adults and legal capacity

Adults with a mental illness or an intellectual disability may lack legal capacity if they can’t make decisions about property, money management, medical treatment or lifestyle decisions. An adult may lack legal capacity to make decisions in one area of life but not in others. Assessing capacity is a complex matter and you should get legal advice.

Having legal capacity

You must have legal capacity to:

• make a contract
• get married
• make a will
• vote.

If it’s proven that you didn’t have legal capacity when you signed a contract, made a will or got married, then the contract, will or marriage may be invalid. You should get legal advice.

If a person without legal capacity makes a contract for the necessities of life (eg buys some food), then they must still pay for what they bought even if they didn’t have the legal capacity to make that contract.

Any adult who understands the electoral process is entitled to vote.

Appointing another person to make decisions on your behalf

Another person may be appointed to make decisions on behalf of a person without legal capacity if:

• an application is made to the Queensland Civil and Administrative Tribunal (QCAT) to appoint a guardian or administrator
• there is an enduring power of attorney, advance health directive or a statutory health attorney

A litigation guardian may be appointed to act on behalf of a person without legal capacity in legal matters.

Applying to QCAT to appoint a guardian or administrator

The Public Trustee or another person who has a proper interest in the affairs of a person (eg a relative or a doctor) can apply to QCAT to appoint a guardian (for personal matters such as where to live) or an administrator (for financial matters).

If you disagree with QCAT’s decision, you may be able to appeal the decision (in some situations). Get legal advice.

If your circumstances change while under a QCAT order—or if you have new evidence to put before the tribunal—you can apply to the tribunal for leave to review the decision to appoint a guardian or administrator.
Most orders appointing a guardian or administrator are made for a set time period and reviews will come up periodically as your orders expire.

Making a complaint about an appointed decision-maker

If you think an appointed decision-maker is acting improperly, you can make a complaint to the Public Guardian.

The Public Guardian protects the rights and interests of adults who have impaired capacity. They can investigate complaints about allegations of financial or physical abuse of adults with impaired capacity or complaints about abuse of an enduring power of attorney. They can also give consent to medical treatment when no statutory health authority is available.

Do I need legal advice?

You may need legal advice if you:

• need to know whether a child, or an adult with an impairment has legal capacity in a particular situation
• want to appeal the appointment of a guardian or administrator
• have questions about an order made by the Queensland Civil and Administrative Tribunal.

How to get legal advice

We don’t give legal advice about guardianship, but can refer you to other services which may be able to help.

The following services may give legal advice:

LawRight provides specialist services including free legal advice and help about guardianship and public trustee matters.

Aged and Disability Advocacy Australia has information and advocacy services in relation to guardianship and administration matters. They can help adults with capacity issues with QCAT processes and help recipients of aged care or community care services to resolve service related matters.

Seniors Legal and Support Service (SLASS) gives free legal and social work support for people over the age of 60 (or 50 in the case of Indigenous people) who are experiencing elder abuse, mistreatment or financial exploitation. The service can help where there is exploitation or abuse as part of a family or informal care relationship.

Cairns Community Legal Centre - Disability Discrimination Legal Service gives free specialist legal advice and assistance in the area of disability discrimination.

Basic Rights Queensland - Disability Discrimination Legal Advocacy Service gives free specialist telephone legal advice and help in preparing cases and representation for disability discrimination in the workplace.

Disability Advocacy Pathways gives information and referrals to people with intellectual disabilities, cognitive impairments, mental illness and profound physical disabilities.

Queensland Advocacy Incorporated—Mental Health Legal Service provides advice and casework services for people receiving involuntary treatment for mental illness under the Mental Health Act 2000 (Qld) particularly for matters before the Mental Health Review Tribunal.

Queensland Advocacy Incorporated Justice Support program provides non-legal advocacy for people with a disability involved in the criminal justice system.

Queensland Advocacy Incorporated—Human Rights Legal Service provides advice and casework services for persons with impaired capacity who are subject to restrictive practices and involuntary treatment. They also operate a telephone-based legal advice service (HRLS Telephone Legal Advice Service).

Queensland Law Society can refer you to a specialist private lawyer for advice or representation.

Who else can help?

The following services may be able to help. They don’t give legal advice.

Office of the Public Guardian is an independent statutory body responsible for protecting the rights and interests of adults with impaired decision-making capacity and children and young people in out-of-home care (foster care, kinship care) residential care and youth detention.

Commonwealth Health and Community Care (HACC) Program has services that support older people to be more independent at home and in the community, including health and personal care, social support, home maintenance and respite.

Queensland Civil and Administrative Tribunal (QCAT) makes decisions about guardianship and administration matters for adults.

Queensland Community Support Scheme help people aged under 65 years (and their unpaid carers) who have a moderate disability or a condition which restricts their ability to carry out activities of daily living. Help is available for community and social support as well as in the home.

Speaking Up For You is a social advocacy service that speaks, writes and acts for individuals with a disability who are over 16 years old in the Brisbane metropolitan area.

Youngcare Connect is a hotline connecting young people with high care needs, their families and carers with government programs and the broader health sector, including care and funding solutions.

Last updated 11 July 2023

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If you have a general question for Legal Aid Queensland, please use the general question form or call 1300 65 11 88, Monday to Friday, 8.30am to 4.30pm.