Communtity Law Manual | Decision making & powers of attorney | Family Court orders for your welfare and property: How decisions can be made for you when there’s no EPA

Family Court orders for your welfare and property: How decisions can be made for you when there’s no EPA

Overview

Protection of Personal and Property Rights Act 1988

As well as allowing you to plan for your future by giving someone an enduring power of attorney (EPA), the law allows for the Family Court to make orders for you in situations where you haven’t made an EPA and you’ve lost the capacity to look after you own affairs.

The Family Court can make “personal orders” to deal with your personal care and welfare. A personal order can be made to deal with a specific issue – like where you’ll live and who’ll look after you – or it can appoint a “welfare guardian” to have a general power to make decisions about your care and welfare.

The Family Court can also make “property orders” for you – these involve appointing a “property manager” to make decisions about your money and property, or part of it (see “Decisions about your money and property” below in this section).

Summary of your rights if the Family Court makes an order

  • 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 with regard to cultural, religious and family values.
  • Whatever orders the Family Court makes, they have to be reviewed regularly.
  • If you have a property manager or welfare guardian, they have to act in your best interests. Their decisions and actions can be challenged by you or others going to the Family Court.

Parents applying for court orders for their children

Parents caring for their intellectually disabled son or daughter for example might assume that once their child has become an adult they will still have legal authority to look after them and make decisions for them. In fact, once their child turns 18 the parents’ legal powers as guardians come to an end, and therefore the Family Court may need to get involved. One of the parents can formally apply to the Family Court to be appointed their child’s “welfare guardian”. They will also have to go back to the Family Court for another order at least every three years, because the law says the appointment as welfare guardian can’t go for more than three years without being reviewed.

It’s similar if you lose “mental capacity” as an adult, through an accident or dementia for example – in those cases your spouse or partner has no automatic right to make decisions for you. Unless you’ve given them an enduring power of attorney, they will have to go to the Family Court to be appointed your welfare guardian.

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