Family Court orders for your welfare and property: How decisions can be made when there’s no EPA
Appointing someone to make decisions for you: Welfare Guardians and Property Managers
Welfare guardians: Someone to make decisions about your care and welfare
What are welfare guardians and when can they be appointed?
A welfare guardian is someone appointed by a Family Court judge to make decisions on your behalf about your day-to-day care and welfare.
If you have a specific or short-term problem, the judge will prefer to make a more limited Personal Order to resolve it.
If there is an ongoing problem or you need more permanent support, the judge can appoint a welfare guardian. The judge will only appoint a welfare guardian if that’s the only way to make sure that the right decisions are made about your personal care and welfare.
Who will the Family Court appoint as my welfare guardian?
Your welfare guardian has to be an individual person (not an organisation), and they have to be at least 20 years old.
The judge can appoint more than one welfare guardian for you (for example, both your parents) if they think this is in your best interests. If you do have more than one welfare guardian, they must consult regularly with each other.
The judge has to decide that the person is capable of doing the job properly and that they will act in your best interests. They won’t appoint someone if there is likely to be a conflict of interest between you. The judge will also try to find out, as far as this is practical, who you want to be appointed.
What decisions can a welfare guardian make for me?
The judge will state the issues your welfare guardian can make decisions about. Within those limitations, your welfare guardian will have a wide range of powers. They can do everything that’s reasonably necessary to make and carry out decisions for you.
Typically, your welfare guardian will be responsible for making decisions about where you live and what your care arrangements will be (including who your carers will be), and what medical treatment or therapy you might have.
The law specifically says that a welfare guardian can’t:
- make decisions for you about getting married or divorced, or adopting out your children
- agree to you having electro-convulsive treatment (“ECT”) or specific types of surgery or treatment (specifically, anything designed to change your behaviour, like a lobotomy), or being part of medical experiments (other than to save your life or prevent serious damage to your health)
- refuse to allow you to have standard medical treatment when it’s necessary
- request the option of receiving assisted dying on your behalf (see: “Euthanasia and assisted dying”).
Property Managers: Someone to make decisions about your money and property
What is a property manager?
A property manager is a person or trustee corporation appointed for you by the Family Court to manage some or all of your money and property. The Family Court can decide to appoint a property manager if you’ve partly or completely lost the ability to manage your money and property yourself.
Note: If there’s an urgent need to protect your property, the judge can appoint a temporary property manager (for up to three months). If this happens, you won’t necessarily know about the application, and you won’t have a right to attend or be heard at the court hearing (unless the judge orders this). To make a temporary order the judge has to have reasonable grounds for believing that you’ve lost mental capacity.
Who will the judge appoint as my property manager?
The Family Court Judge can appoint either an individual person (who has to be at least 20) or a trustee company like Public Trust or Te Tumu Paeroa/the Māori Trustee. The judge can appoint more than one property manager.
The judge has to be satisfied the person or organisation is capable of doing the job properly and that they will act in your best interests. They won’t appoint a person or organisation if there is likely to be a conflict of interest between you. The judge will also try to find out, as far as this is practical, who you want to be appointed.
If you’re being cared for in a rest home or other institution, the person in charge of that place can’t be your property manager.
What powers does my property manager have?
Your property manager is given a range of specific powers by the Family Court judge. These usually include:
- managing your money and bank accounts
- paying your bills, such as power and phone bills
- making sure your tax returns are filed with IRD when necessary
- buying or selling property as appropriate, but only if the property is not worth more than $120,000 (to buy or sell property over that amount, they need to get the Family Court’s permission)
- managing any business you may own
- renting out any house or flat you may have, as necessary.
Responsibilities of being a welfare guardian or property manager
What does my welfare guardian or property manager have to do?
Being a welfare guardian or property manager is a lot of responsibility.
If you have a welfare guardian or property manager, they will have a legal responsibility to:
- always promote and protect your welfare and best interests
- consult with:
- you, and
- each other (if your welfare guardian and property managers are different people), and
- others who are involved with your welfare and who can give competent advice, like hospital caregivers, family members and service providers
- encourage you to be as self-reliant as possible (for example, your property manager could allow you to have control over certain parts of your property, such as a particular bank account).
Welfare guardians must help you be a part of your community as much as possible.
How do I know my welfare guardian or property manager will make the right decisions?
There are protections in place to make sure that your welfare guardian and/or property manager will make decisions in your best interests, and to prevent anyone misusing their position.
Your welfare guardian and/or property manager will be subject to:
- Limits set by the judge – The judge will state the areas of life that the guardian or manager can make decisions about. They can also set limits about what they can’t make decisions about, and there are certain decisions that no one can make on your behalf (see: “What decisions can a welfare guardian make for me?” above).
- Reporting to the Family Court – Your property manager has to report in writing to the Family Court about the property they’re managing. The first report is due three months after they’re appointed, and after they must report every year. The Family Court gets the Public Trust or an accountant to examine these reports.
- Reviews by a judge – A judge has to review the decision to appoint your property manager and/or welfare guardian after three years (and again every five years after that). You can also ask a judge to review the appointment at any time, or any decision that they’ve made. If the judge decides that they haven’t made the appropriate decisions, they can decide to replace them with someone else.
- Legal liability if they misuse their powers – A welfare guardian and/or property manager can be held personally responsible for their decisions if they act in bad faith or without reasonable care. They could also be personally responsible for contracts or other arrangements they enter into (for example, a mortgage) if they don’t consult with your other welfare guardians/property managers.
- No payments beyond reasonable expenses – A welfare guardian and/or property manager can’t be paid for their role. However, they are allowed to get back their reasonable expenses out of your money or property. If there’s not enough to cover these expenses, they can apply to the Family Court to be reimbursed by the government.