By Hayley Roberts - March 2019
Do you have Enduring Powers of Attorney in place? If you do not have Enduring Powers of Attorney in place, and you lose your mental capacity, someone would need to make an application under the Protection of Personal and Property Rights Act 1988 to the Family Court in order to make certain decisions for you. Applications are most commonly made by a relative, however the Act does provide for others (such as social workers, medical practitioners, friends etc) to apply.
This article outlines three of the most common applications that are required when a person loses their capacity without Enduring Powers of Attorney in place. The common applications are for the appointment of the following:
The starting point for most families is an application to the Family Court to have a Welfare Guardian appointed. A Welfare Guardian is someone appointed by the Family Court under the PPPR Act to make decisions on behalf of a person in relation to all aspects of that person’s personal care and welfare (such as decisions relating to the person’s health, care and living arrangements). Welfare Guardians are responsible for support and protection as well as acting in the best interests of the person they are acting for. A person in respect of whom the application is made is referred to as the "subject person".
A Welfare Guardian order has an expiry date and, at the end of the term, another Court application will be required to either extend the current Welfare Guardian’s term or appoint a new Welfare Guardian (all at an additional cost).
Before a Welfare Guardian application will be granted by the Court, the following criteria must be met:
The Court will then assess the application and will only grant an order if they can be satisfied that the following requirements are met:
The paramount consideration of the Welfare Guardian must be the promotion and protection of the welfare and best interests of the subject person.
A Property Administrator is someone appointed by the Family Court to administer any one or more items of property outlined in the order on behalf of the subject person.
A Property Administrator will only be appointed where the item of property in question is worth less than $5,000 or the total income/benefit received is less than $20,000.
An example of when this may be used is when the subject person receives a benefit of less than $20,000 a year and the subject person does not hold any assets (like vehicles, bikes, mobility scooters etc) over the value of $5,000.
There are limitations to Property Administration orders, these are as follows:
A Property Manager is appointed to manage the property of the subject person. The particular application can be for the entirety of the subject person’s property, or for certain aspects of the subject person’s property.
A Property Manager may be a person or a trustee company (such as Public Trust), and there is no limit to the number of Property Managers that can be appointed at one time (although this should be thought through when making an application as co-ordinating too many Property Managers may be a logistical nightmare). If there are multiple Property Managers appointed, they will need to act and make decisions jointly.
Like with the Welfare Guardian application, there is an expiry date on Property Manager orders. A Property Manager’s appointment will be up to three years from the grant (the Court will determine this date when making the grant).
The Court will only grant an application for a Property Manager when:
The Court will not grant an order for a Property Manager if the person applying simply thinks the subject person is not managing their money the way the applicant thinks is the "correct" way. The Court will also ensure there is no undue influence in the management of the subject person’s property affairs.
Responsibilities of a Property Manager:
We understand these types of orders can be somewhat confusing. We recommend that you make contact with a lawyer to assist you through the process of making any of these applications.
Hayley is a Senior Solicitor in our Asset Planning Team and can be contacted on 07 958 7472.