After a serious injury, a partner, parent or friend may begin organising appointments, reading letters and speaking with insurers. That help can be essential. Problems arise when an organisation asks who may give instructions, authorise access to records or accept an offer, and the family discovers that those are different questions.
The starting point is the injured adult’s own decision-making ability, wishes and participation. Where another person needs to act, identify the legal basis and its scope before treating a helpful family arrangement as authority over the claim.
Needing help does not mean losing the right to decide
The Guardianship and Administration Act 2000 starts from a presumption of capacity. Its definition concerns understanding the nature and effect of decisions about a matter, making those decisions freely and voluntarily, and communicating them in some way. Section 11B includes principles requiring support, participation and respect for the adult’s views, wishes and preferences.
An injury label is not a substitute for that enquiry. Someone may need an interpreter, a communication aid, shorter meetings or a clear written explanation while remaining able to decide. Difficulty speaking, reading a long letter or physically signing a document should not by itself be treated as inability to make the decision.
Start by asking what would help the adult understand and communicate. Explain the proposed choice and its consequences in an accessible way, allow time and check the person’s own understanding. Support should enable their decision, rather than pressure them into the family’s preferred outcome.
The Queensland Government’s capacity guidance explains assessment within the guardianship framework. A person’s capacity can vary with the matter and time. If there is a real concern, the lawyer should identify the relevant legal question and what appropriate evidence or assessment is needed.
Be clear about the decision that needs to be made
“Can they manage the claim?” may be too broad. Giving a history, consenting to obtain records, instructing a solicitor about proceedings and evaluating a final offer involve different information and consequences. Managing money after settlement raises another question again. State which decision is now required and why the concern has arisen.
Medical evidence can assist, particularly when it addresses the actual decision and the support available. A report concerned only with work capacity or a diagnosis may not answer the legal question. Give the practitioner and lawyer the relevant context instead of seeking a general statement that the adult is “capable” or “incapable of everything”.
Capacity for conducting litigation has its own legal context. The definition in schedule 5 of the Supreme Court of Queensland Act 1991 is directed to making the decisions required of a litigant for conducting proceedings, or statutory deemed incapacity. The lawyer must consider the applicable court framework rather than transplanting a health-care assessment into every claim decision.
If the person’s condition or ability changes, raise that promptly. An earlier report or appointment may remain important, but it should not be assumed to resolve every later decision. Existing declarations and orders also have legal effects; a family should obtain advice about review or procedural steps rather than informally declaring them cancelled.
What can a family member or support person do?
With suitable arrangements, a supporter may organise documents, help prepare questions, attend meetings and provide their own observations. Clarify the adult’s consent to their involvement and how information may be shared. A support person’s useful account of daily changes is different from giving instructions in the adult’s name.
Being a spouse, an adult’s parent, next of kin or emergency contact does not automatically confer general authority over an injury claim. Nor does being permitted to discuss a claim account necessarily authorise accepting an offer. Ask the insurer, provider and lawyer what authority they require for the particular action.
Keep the adult’s own account distinguishable from family observations. If someone else prepared a chronology, identify its author and sources. Avoid having several relatives give apparently competing instructions. An agreed contact arrangement can simplify communication without pretending to grant powers that person does not hold.
| Role | Basis of involvement | What must be checked |
|---|---|---|
| Support person or relative | Practical assistance and participation with appropriate consent or arrangements. | Permission to receive information and the difference between helping and deciding. |
| Attorney | A valid instrument granting powers for specified matters. | Scope, commencement, conditions, joint appointments and whether the power remains effective. |
| Guardian or administrator | A tribunal appointment for particular personal or financial matters. | The order’s matters, powers, conditions and duration; these appointments are not interchangeable. |
| Litigation guardian | The applicable procedural rules for a person under a legal incapacity. | Eligibility, absence of adverse interest, procedural appointment and representation by a solicitor where required. |
Read an attorney’s powers before relying on the title
An enduring power of attorney can authorise action for financial or personal matters, but the instrument must be read. Under section 33 of the Powers of Attorney Act 1998, when powers can be exercised depends on the kind of matter and the statutory rules, together with the instrument. Financial powers do not all begin only after incapacity; personal powers have a different position.
Supply the whole instrument, including conditions and appointment pages, rather than a photograph of the attorney’s name. Ask whether the proposed legal or financial action is within its scope, whether a commencement condition is satisfied and whether attorneys must act jointly. Check any later document, revocation or tribunal order that may affect the power.
A general power of attorney and an enduring power are not equivalent. Section 18 addresses revocation of a non-enduring power when the principal becomes a person with impaired capacity. Conversely, an enduring document is not a universal permission to act however the attorney chooses. Duties, limits and conflict rules still matter.
Authority relating to health care should not be assumed to cover conducting a damages claim or receiving settlement funds. If no suitable existing authority is available, ask about the appropriate process. A person cannot solve a capacity concern simply by arranging a new signature on a document whose legal making requirements have not been considered.
Guardianship and administration serve different matters
Section 12 of the Guardianship and Administration Act permits a tribunal appointment where the statutory conditions are met, including impaired capacity for the matter and the relevant need for decision-making and protection. It is not an automatic step after a serious injury, and an appointment is not made merely because relatives disagree with a capable adult’s decision.
A guardian’s role concerns personal matters within the order. An administrator’s role concerns financial matters within the order. Schedule 2 distinguishes legal matters relating to financial or property affairs from other legal matters, and section 33 ties powers to the appointment. A damages claim needs that classification and scope checked; the word “guardian” alone does not establish authority for it.
The Office of the Public Guardian’s explanation and QCAT’s overview describe these roles and appointment questions. The legislation and actual order determine the powers. Do not assume that an agency is automatically appointed to every injured adult or that a broad financial appointment resolves every court procedure.
When is a litigation guardian needed?
Under rules 93–95 of the Uniform Civil Procedure Rules 1999, a person under a legal incapacity starts or defends proceedings through a litigation guardian. The proposed guardian must satisfy eligibility requirements, including having no adverse interest in the proceeding. A litigation guardian who is not a solicitor acts through a solicitor.
Rule 94 also addresses someone authorised by or under an Act to conduct proceedings for a person with impaired capacity, within that authority and unless the court orders otherwise. Rule 95 provides for filing written consent unless the court appoints the guardian, and for court appointment, removal or substitution. A family relationship alone does not complete these procedural requirements.
Potential conflicts deserve early attention. For example, a proposed representative may have a competing claim from the same event, an allegation may concern their own conduct, or they may seek reimbursement from the adult’s recovery. That does not prove wrongdoing. It means the lawyer needs the facts before deciding whether the person can properly act.
If a capacity concern develops after proceedings have begun, tell the solicitor immediately. Rule 72 deals with a party becoming a person with impaired capacity during proceedings and requires attention to leave and directions. Do not assume that an existing contact person can simply continue every procedural step.
Authority to negotiate is different from settlement approval
Section 59 of the Public Trustee Act 1978 protects settlements involving a person under a legal disability, including a person with impaired capacity for a matter within the Guardianship and Administration Act meaning. It addresses claims in court and compromises before action. Where it applies, a representative’s agreement does not replace court or Public Trustee sanction.
For proceedings involving a person under a legal incapacity, UCPR rule 98 makes a compromise ineffective without approval by the court or the Public Trustee acting under section 59. The court material includes the solicitor’s affidavit explaining best interests, the litigation guardian’s instructions statement and any other material required. The Queensland Public Trustee’s sanctions information describes its own application channel; it does not choose the route for every claim.
Ask which protection applies to this adult and proposed agreement, what evidence supports the compromise and how approval will be obtained. Review medical uncertainty, the liability dispute, realistic alternatives, costs and refunds. A signature by an attorney, administrator or litigation guardian is not a reason to skip that enquiry. A sanctioned compromise is binding under section 59.
Who receives the settlement money?
Section 59 distinguishes the payment position for a claim in court from a settlement before action. For money recovered in the court cause or matter, subsection (1) provides for payment to the Public Trustee unless the court otherwise directs. For a pre-action compromise, subsection (2) identifies the “appropriate person” unless a court directs otherwise.
That definition follows an order: an administrator; if there is none, an attorney for a financial matter under an enduring power; otherwise, the Public Trustee. The actual circumstances, appointment and any court direction need checking. It is inaccurate to assume either that the Public Trustee always receives every adult’s settlement or that any relative may receive it into an everyday account.
Before finalising the arrangements, request a reconciliation from the offer through costs, expenses and refunds to the proposed balance, and identify its authorised recipient. Clarify who will manage the fund, what powers and reporting apply, any management charges and how treatment or other expenditure will be considered. Authority to manage a fund does not turn it into the representative’s money.
Illustration only: In this hypothetical example, a partner helps an injured adult read correspondence using shorter meetings and written explanations. Later, a proposed settlement raises a specific capacity concern. The solicitor checks appropriate evidence, an existing enduring power and the procedural and sanction requirements. Payment arrangements are then considered separately. The partner’s practical help does not by itself establish incapacity, settlement authority or a right to receive the money.
Participationsupport the adult Authoritycheck the particular matter
Six steps when someone needs help with a claim
- Step 1 Identify the adult’s preferred support and communication arrangements. Keep their own views and decisions central to discussions.
- Step 2 State the particular decision and capacity concern. Ask the solicitor what legal test and appropriate evidence apply.
- Step 3 Gather complete existing powers, orders and later variations. Confirm scope, commencement, duration, joint requirements and any conflict.
- Step 4 Check record-access permissions and the correct representative or litigation arrangements before instructions are given in someone else’s name.
- Step 5 Before a release, clarify the offer assessment, required sanction, deductions, authorised recipient and future money-management arrangements.
- Step 6 Keep the final orders and approvals, report changes and check all current claim deadlines. Do not assume incapacity automatically suspends every process.
Frequently Asked Questions
Can I sign because I am the next of kin?
That description alone does not provide general authority to sign a release for an adult. Identify the action and the adult’s ability to decide, then check any valid instrument, order or procedural role. An authority to receive updates may be much narrower than authority to settle.
Does a brain injury mean a litigation guardian is required?
Not automatically. Diagnosis and litigation capacity are different questions. The solicitor should consider the decisions required in the proceeding, available support and appropriate evidence. The head injury guide explains the broader clinical and practical claim record without diagnosing capacity.
Can a health-care decision-maker obtain every claim document?
No general entitlement to the whole claim file should be assumed. The person’s legal role, the purpose of access and the holder’s requirements matter. Ask what consent or authority covers the specific records. Our medical record access guide explains the separate request process.
Does an enduring power remove the need for settlement approval?
No, it does not itself displace the protected-settlement provisions. First check the attorney’s actual authority and the adult’s position for the relevant matter. Then determine whether section 59 or rule 98 requires sanction and which route applies. Signing and approval must not be treated as the same event.
Must we wait until capacity improves before doing anything?
No blanket waiting rule applies. Seek advice about evidence, lawful interim arrangements and urgent procedural needs. Capacity may change, but applications, notices and court dates still need checking. The Limitation of Actions Act 1974 contains disability provisions with specific conditions; they are not a general pause for every claim requirement.
Will the Public Trustee always manage the money?
No. Section 59’s payment rules, whether proceedings have begun, the applicable appointments and any court directions need to be read together. Ask for the proposed recipient and management arrangements before settlement. Approval of the compromise does not grant unrestricted spending authority to whichever relative has been helping.
Sources and further reading
- Guardianship and Administration Act 2000, particularly sections 11–12 and 33, schedule 2’s financial, personal and legal matters and schedule 4’s capacity definition; linked above.
- Powers of Attorney Act 1998, particularly sections 18, 32–33 and the instrument’s conditions; linked above.
- Supreme Court of Queensland Act 1991, schedule 5; Uniform Civil Procedure Rules 1999, rules 72, 93–95 and 98; linked above.
- Public Trustee Act 1978, section 59, including sanction, different payment provisions, binding effect and costs; linked above.
- Queensland Government capacity guidance, Office of the Public Guardian role information, QCAT overview and Public Trustee sanctions information; linked above within their scopes.
- Assessing a proposed settlement and the separate child settlement approval guide.
Help clarifying support and authority for an injury claim
Contact Carter Capner Law with the claim correspondence, any proposed offer and complete existing powers or orders. We can discuss the support, evidence and authority questions that need attention for the particular claim.
This guide provides general Queensland legal information, not an assessment of any person’s capacity or advice to sign a document. Current orders, individual circumstances, claim procedures and professional advice remain necessary.