Articles
Welfare guardian and property manager orders
In an ideal world, every person in New Zealand aged 18 and over would have enduring powers of attorney in place, so they can rest assured that they have a trusted person of their choosing with the legal authority to deal with their personal and property affairs if they become temporarily or permanently incapacitated.
Despite repeated urging from lawyers, the reality is that the majority of New Zealanders still do not make such arrangements. In cases where a person loses capacity and does not have a valid EPA in place, the Family Court can appoint a welfare guardian and property manager for them under the Protection of Personal and Property Rights Act 1988.
Procedure
The procedure involves a formal application to the Court, supported by affidavit evidence from the applicant and, where appropriate, written consents from immediate family members. Where the person in respect of whom the application is made is living in a retirement village or a care home, the manager of the facility may be served with a copy of the application for their information.
The Court will always appoint an independent lawyer to act for and represent the incapacitated person. The lawyer is commonly referred to as “lawyer for the subject person” and will be appointed from a list of specialist and experienced lawyers maintained by the Court. As part of their role, they will consider and report back to the Court on the application.
Where an application is uncontroversial and unopposed, it is quite common for orders to be made “on the papers”, i.e. without the need for an in-person hearing before a Judge. In other cases, defended hearings can be held with submissions and questioning of witnesses if necessary.
If made, orders will be for a limited duration and will be subject to ongoing review by the Court.
Welfare guardians
A welfare guardian has the legal authority to make and implement decisions about a person’s personal care and welfare arrangements, and can only be appointed if the Court is satisfied that the person wholly lacks the capacity to make or communicate decisions relating to their personal care and welfare.
A welfare guardian must always act in the best interests of the subject person, and is also required to encourage the autonomy of the subject person as far as possible, to facilitate their integration into the community to the greatest extent possible, and to consult other persons who also have a proper interest in their welfare.
Property managers
The Court can also appoint an individual, several individuals or a trustee company to act as the manager of a subject person’s property. Common tasks for a property manager including managing finances, operating bank account, paying expenses, and buying and selling property as required.
A property manager can only be appointed when the Court is satisfied that the subject person wholly or partly lacks the competence to manage their own affairs in relation to their property.
Court-appointed property managers are subject to rigorous reporting requirements, including the requirement to file financial statements on their initial appointment and on every anniversary of their appointment. These statements are audited by the Public Trust, the cost of which is charged to the subject person. If concerns are raised, the manager can be required to attend Court and explain their management to a Judge.
Where a person has only modest assets and income and does not require a full property manager, the court can instead make an order to administer property which carries less-stringent reporting and audit requirements.
Personal orders
Where a full welfare guardian order is not required, or where specific orders would be beneficial, the Court can also make orders in relation to a broad range of personal matters, including but not limited to living arrangements, education, rehabilitation, and medical advice and certain kinds of treatment.
Contact us
Do you need to apply for a welfare guardian or property manager order?
We are experienced with helping people make applications to the Family Court under the Protection of Personal and Property Rights Act. Contact us today for expert assistance.