Family Court orders for your welfare and property: How decisions can be made when there’s no EPA
Overview
Protection of Personal and Property Rights Act 1988
If you haven’t made an enduring power of attorney (an “EPA”), and you’ve lost the ability to look after your own affairs or make decisions in your own best interests (lose “mental capacity”), your loved ones will have to apply to the Family Court to make orders for you.
If you’re looking after an adult child, you’ll need to go to the Family Court when they turn 18.
When your child turns 18, your legal powers as guardians come to an end and you’ll no longer have the authority to make decisions on their behalf.
If your child will not be able to make decisions for themselves, you (or one of your child’s other guardians) will need to apply to the Family Court to be appointed as their “welfare guardian”.
The appointment of welfare guardian lasts for a maximum of three years. Whoever is appointed as a welfare guardian will have to go back to the Family Court for another order whenever it expires, and at least every three years.
If you’re under 18, this section doesn’t apply to you.
If you’re under 18, your parents are your legal guardians. If your parents aren’t able to act as your guardians, the Family Court will appoint a guardian. This could be another adult, Oranga Tamariki, or the Court itself.
This means that you already have a guardian to make decisions for you – although ordinarily the law sees their powers as reducing to something more like a guidance role as you mature as a teenager, and become more capable of making your own decisions. For more information about what decisions your guardian can make for you, see: “Guardianship of children”.
When can the Family Court make decisions for me?
Protection of Personal and Property Rights Act 1988, ss 5, 6(1), 6(3)
The Family Court will ask two main questions before they will make decisions on your behalf:
- Question 1: Have you lost mental capacity?
- Question 2: Is it necessary for the Family Court to make a decision on your behalf?
Question 1: Have you lost your mental capacity?
Protection of Personal and Property Rights Act 1988, ss 5, 24
You’re considered to have lost mental capacity if:
- you’re unable, completely or partly, to understand decisions about your own personal care and welfare and to foresee the consequences of those decisions, or
- you’re able to do those things, but you’re completely unable to tell other people about your decisions, or
- you’ve completely or partly lost your ability to make decisions about or manage your money or property.
The judge will assume you are mentally capable unless someone has evidence to prove otherwise. This evidence could include:
- medical evidence about:
- your memory and level of understanding
- your ability to focus on issues, and
- your ability to exercise judgment, form opinions and communicate your views and decisions to other people, and
- sworn statements (“affidavits”) from family, friends and health professionals who know you and who have spent time with you.
Note: The Family Court won’t decide that you don’t have mental capacity just because you’re making decisions that might not seem reasonable to others.
Question 2: Is it necessary for the Family Court to make a decision on your behalf?
The judge will try to make decisions on your behalf (“orders”) only where it’s absolutely necessary. If it is necessary, the judge will try to make an order that intervenes as little as possible in your life.
When making these orders, the judge should encourage you to make your own decisions and manage your own affairs as much as possible.
What kind of decisions can the Family Court make?
The Family Court can make decisions about your personal care and welfare (called a “Personal Order”). A Personal Order can:
- make a specific, one-off decision (like where you’ll live and who’ll look after you), or
- appoint someone who will have the ability to make ongoing decisions about your care and welfare (called a “welfare guardian”).
The Family Court can also make decisions about your money and property. The judge can:
- appoint someone to manage a small amount of your money or property through a Personal Order, or
- appoint someone (or more than one person) to make decisions about all (or a specific part of) your money and property (called a “property manager”). This decision is called a “Property Order”.
Who’s who
- A welfare guardian is someone who makes decisions on your behalf about your day-to-day life, including your medical treatment and where you’ll live. They can also manage some of your money if you have a small amount of income or property.
- A property manager is someone who manages all (or part of) your money or property.
What are my rights if the Family Court is making a decision on my behalf?
The law stresses the importance of people making their own decisions wherever possible. The Family Court will try, as much as possible, to avoid making decisions that interfere with your life.
The Family Court will be guided by the following principles:
- the courts should only get involved if all other means of care and support have been exhausted
- you should be consulted and encouraged to use whatever capacity you have for making decisions
- you have the right to have a lawyer represent you, whether or not you can afford to pay for one
- the Family Court should choose the least restrictive option, particularly when making a decision that involves cultural, religious, or family values
- any decision that the Family Court makes should be reviewed regularly
- if someone is appointed to make decisions on your behalf, they have to act in your best interests, and the Family Court can review their decisions to make sure of this.
