The Queensland Civil and Administrative Tribunal (QCAT) recently provided guidance on who may act as a 'restrictive practices substitute decision-maker' (RPSDM) and is therefore able to provide informed consent to the use of restrictive practices in Queensland.
This guidance comes by way of QCAT's first decision under the Aged Care Act 2024 (Cth) (New Act) – EJ [2026] QCAT 175 (EJ) – as well as the Frequently Asked Questions document (FAQ) and Practice Direction No. 2 of 2026 (Practice Direction) on restrictive practices published by QCAT in July 2026.
The EJ decision
The New Act and Aged Care Rules 2025 (Cth) (Rules) require informed consent to the use of any practice or intervention that has the effect of restricting the rights or freedom of movement of an individual receiving funded aged care services in an approved residential care home. If an individual lacks capacity to provide that consent, an RPSDM (who is appointed by or under the law of the relevant State or Territory) is authorised to provide consent on the individual's behalf.
QCAT previously confirmed that a guardian appointed under s 12 of the Guardianship and Administration Act 2000 (Qld) (GA Act) could act as the RPSDM and give or withhold informed consent to the use of restrictive practices under the former legislative framework (NJ [2022] QCAT 283).
In EJ, handed down on 26 March 2026, QCAT identified an alternative pathway. Specifically, QCAT determined that an attorney appointed under an enduring power of attorney (EPOA) for personal matters under the Powers of Attorney Act 1998 (Qld) can act as the RPSDM without the need for a guardianship application.
Types of appointment
In summary, there are now two recognised mechanisms by which a person may be authorised to act as a RPSDM in Queensland capable of providing informed consent for the use of restrictive practices:
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Attorney under an EPOA for personal matters (per EJ) – An attorney is appointed under an EPOA by the individual while they have capacity. Where a valid EPOA for personal matters is in place, the attorney can act as the RPSDM without requiring an application to QCAT. Importantly, the EPOA must specifically extend to 'personal matters' (ie an appointment for financial matters only is not sufficient). Unless the document expressly provides otherwise, the attorney is taken to have the maximum power that could be given for the matters stated, and can give informed consent to the use of the restrictive practice, including its duration, frequency and intended outcome.
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Guardian appointed by QCAT (per NJ) – Where there is no valid EPOA for personal matters, or the attorney is unable or unwilling to act, providers may apply to QCAT for the appointment of a guardian under s 12 of the GA Act. QCAT must be satisfied that the individual has impaired capacity and that, without the appointment, their needs would not be adequately met. The appointment may be subject to conditions.
Recommended next steps
In light of the above, we recommend that providers:
- Review the FAQ and Practice Direction issued by QCAT.
- Review current processes to ensure guardianship applications are not being made where a valid EPOA for personal matters exists.
- Check EPOAs on file to confirm they appoint an attorney for personal matters and do not contain express limitations.
- Update internal policies, as required, particularly for multi-jurisdictional providers adopting processes from other States.
- Encourage residents and their families to consider executing an EPOA for personal matters while the resident still has capacity.
Please do not hesitate to get in touch if we are able to assist, or if you would like to discuss this update.
