30 March 2019

Common applications under the Protection of Personal and Property Rights Act 1988

Do you have Enduring Powers of Attorney in place?  If you do not 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:

• Welfare Guardian (personal order);
• Property Administrator (personal order);
• Property Manager (property order).

Welfare Guardian

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 subject person either wholly or partially lacks the capacity to understand the nature and to foresee the consequences of decisions in respect of matters relating to their personal care and welfare; or
• The subject person has the capacity to understand the nature and foresee the consequences of those decisions, but wholly lacks the ability to communicate these decisions.

The Court will then assess the application and will only grant an order if they can be satisfied that the following requirements are met:

• Appointing a Welfare Guardian is the only satisfactory way to ensure that the appropriate decisions are made about the subject person’s personal care and welfare;
• Appointment of a Welfare Guardian is the least restrictive intervention possible by the Court in the subject person’s life;
• The Welfare Guardian will enable and encourage the subject person to exercise and develop such capacity to the extent that is reasonably possible;
• The subject person ordinarily lives in New Zealand and is at least 18 years of age.

The paramount consideration of the Welfare Guardian must be the promotion and protection of the welfare and best interests of the subject person.

Property Administrator

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:

• Value restrictions (property of less than $5,000 and income of less than $20,000);
• Only one person can be appointed as the Property Administrator at a time;
• You cannot have a Property Administrator where there is already a Property Manager appointed.

Property Manager

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 subject person either wholly or partially lacks the capacity to understand the nature and to foresee the consequences of decisions in respect of matters relating to property; or
• The subject person has the capacity to understand the nature and foresee the consequences of those decisions, but wholly lacks the ability to communicate these decisions.

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:

• The paramount consideration of a Property Manager must be to use the property in the “promotion and protection of the best interests” of the subject person.
• Property Manager must, where possible, encourage the subject person to manage their own property affairs.
• Consult with the subject person regarding property matters.
• If a Welfare Guardian has been appointed, the Property Manager must consult with the Welfare Guardian on a regular basis to ensure the interests of the subject person are not prejudiced.
• As far as practicable, Property Managers must also consult with:
  • Other persons who, in the Property Manager’s opinion, are interested in the welfare of the subject person and are competent to advise in relation to the management of the subject person’s property; and
  • A representative from a not-for-profit group that provides services and/or facilities for people such as the subject person who, in the Property Manager’s opinion, would be competent to advise the Property Manager in relation to the subject person’s property.

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.

If you would like further information please contact Amanda Hockley on 07 958 7451.