March 2019 - McCaw Lewis

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

Posted on March 30, 2019March 19, 2026 by au_common_admin

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.

Employment law pānui

Posted on March 29, 2019March 19, 2026 by au_common_admin

As of 1 April 2019 employers need to be aware of several changes to minimum employment standards.

Minimum wage

The minimum wage will increase to $17.70. Employers can expect to see further rises in the minimum wage rates following the Government’s commitment to increasing the minimum wage to $20 by 2021.

Training and starting-out minimum wage rates have increased to $14.16 per hour, but can only be used in specific situations based on an employee’s age and whether they have worked six continuous months with the employer.

Domestic violence leave

The Domestic Violence – Victims’ Protection Bill will come into effect creating a new form of leave for employees affected by domestice violence and the ability to negotiate flexible working arrangements.

Employees affected by domestic violence will be entitled to up to 10 days of paid leave per year. Entitlement will arise and the leave can be taken similar to the existing sick and bereavement leave provisions.

Employees affected by domestic leave will be able to request short-term variations to their working arrangements, for example hours of work, location and/or duties. Employers will be required to respond urgently to the request (within 10 working days) and are allowed to ask for proof the employee is affected by domestic violence (though we envisage this will be a tricky area to navigate given the sensitivity of the issues).

An employer will only be entitled to refuse the request if the employee fails to provide the proof on request, or if the request cannot be reasonably accommodated. A non-exhaustive list of reasons the request cannot be accommodated is set out in the legislation which includes the employer’s inability to reorganise work among existing staff or to recruit additional staff, the change having detrimental impacts of quality and performance of work, or the cost being too burdensome on the employer.

More changes to come in May

From 6 May 2019 more changes will come into effect, including:

Changes to the 90 day trial periods and who can use them.
The ability to have set rest and meal breaks will be restored.
Employer obligations will increase in respect of Collective Employment Agreements and how they employ new staff.
Employers will be required to allow union representatives reasonable time to perform their union duties and pay them on the same as their ordinary working rate.

These changes will impact on and affect the way employers are operating their business. This serves as a timely reminder for employers to check their employment agreements are up to date as a good starting point to accommodate these changes.

If you would like further information please contact Renika Siciliano on 07 958 7429.

Housing Accords and Special Housing Areas Act update

Posted on March 26, 2019March 19, 2026 by au_common_admin

The recent Enterprise Miramar Peninsula Incorporated v Wellington City Council [2018] NZCA 541 (“the Case”) provides important commentary on the interpretation of section 34 of the Housing Accords and Special Housing Areas Act 2013 (“the Act”) and on apparent bias in relation to local authority decisions.

Section 34 considerations

Section 34 of the Act outlines the factors that must be taken into account when considering an application for a qualifying development resource consent under the Act. The Act states that the following factors must be given weight in the order listed as follows:

The purpose of the Act, which is stated at section 4 as being to “enhance housing affordability by facilitating an increase in land and housing supply in certain regions… identified as having housing supply and affordability issues”;
The matters in Part 2 of the Resource Management Act 1991 (“RMA”) which relate to the sustainable use, development, and protection of natural and physical resources;
Any relevant proposed plan;
Other matters that would arise under sections 104-104F of the RMA or other enactment as applicable;
The key urban design qualities expressed by the Ministry for the Environment.

The case

The Court of Appeal found that the Wellington City Council (“the Council”) failed to correctly consider the section 34 matters. The key issues on appeal were:

Error of law, in the Council’s approach that the purpose of the Act trumped other considerations;
Error of law, around the adequacy of infrastructure under section 34(2);
Apparent bias.

Weight of the purpose of the Act

While the purpose of the Act is to be given the most weight, the Council was found to have used the relative weight given to this factor in order to neutralise the other considerations. The factors outlined in sections 34(b)-(e) were held to have ‘no more than a minor effect’ in comparison to the purpose, so the Council did not consider the true adverse effects on the application.

This meant that Council had not properly considered all five factors properly. It had considered one factor in detail (the purpose of the Act), and had used this to give less attention to the other factors.

Decision-makers are required to assess the matters listed under section 34 uninfluenced by the purpose of the Act, before standing back and looking at the overall balance.

In other words, a council should independently assess each matter first and then weigh them in that order to reach a decision. The matters cannot have been weighed appropriately if section 34(1)(a) was used to neutralise the matters in sections 34(1)(b)-(e).

Failing to sufficiently consider the required factors before weighing themwas a significant error as the correct application of section 34 could have resulted in a different outcome to the application.

Apparent bias

The Court ordered the Council to reconsider the application. The Court did not believe that it was necessary to appoint independent commissioners to conduct the review, but Council was encouraged to consider councillors’ ability to bring an open mind to the decision due to the possibility of apparent bias following the proceedings.

In terms of bias, the Court held that in many local authority regulatory decisions it is inappropriate to require a standard of complete impartiality. Due to the dual functions of local authorities, there are limits to the application of apparent bias, as councils will often be required to make regulatory decisions about a matter in which a council has an interest.

For this reason, the Court clarified the legal test for local authority bias as being whether the ultimate decision was made by open minds, in which case a predisposition to a particular result will not render the decision invalid.

Conclusion

The Enterprise Miramar case clarifies the way in which section 34 of the Act should be applied, finding that each factor must be assessed individually before being weighed against the purpose of the Act.

Further, the Court clarified the test for apparent bias in local authority decisions, requiring only an open mind to be brought to the matter.

The firm acknowledges the assistance of Kaylee Bird in preparing this article.

If you would like further information please contact Dale Thomas on 07 958 7428.

Month: March 2019