Family Court

CONTENTS

Introduction Enduring powers of attorney Personal rights and personal orders Welfare guardians Property rights and property orders Reviews How the Court process works Legal aid Glossary - Key terms used in the PPPR Act Need more information and advice?

INTRODUCTION

The Protection of Personal and Property Rights Act 1988 (the PPPR Act) helps people who have lost the capacity to make or understand decisions about their own personal affairs or property, or who are no longer able to tell other people what they've decided.

The Act allows people to decide in advance who they would like to make decisions for them if they become incapable of making decisions for themselves. They do this by giving the other person an enduring power of attorney.

If, however, a person has not given an enduring power of attorney and can no longer make decisions for himself or herself, relatives and others can apply to the Family Court under the PPPR Act for the Court to make specific personal orders for that person, such as where they will live and who will look after them. Or the Court can be asked to appoint someone - a welfare guardian or property manager - to make decisions for the person.

The PPPR Act operates alongside the Mental Health (Compulsory Assessment and Treatment) Act 1992.

CAN FAMILY MEMBERS MAKE DECISIONS FOR SOMEONE WHO IS INCAPACITATED?

Many people think, incorrectly, that if someone has lost the capacity to make, understand or communicate decisions, then a spouse, partner, parent or next of kin can legally make decisions for them, whether or not the incapacitated person ever gave them the power to do this. This is not true. Instead, the PPPR Act provides a way for decisions to be made for an incapacitated person, either by an "attorney" who the person has appointed earlier, or by the Court or someone appointed by the Court.

WHO DOES THE PPPR ACT PROTECT?

The PPPR Act can apply to a wide range of people, including -

• people who are mentally ill
• people with an intellectual disability
• people who have severe head injuries
• elderly people who have become mentally incapacitated.

PERSONAL ORDERS AND PROPERTY ORDERS

The PPPR Act deals with personal rights and property rights separately -

• A personal order deals with the care and welfare of the person in question. This can include appointing a welfare guardian to make decisions about the person's care and welfare. For more details, see the next section, "Personal rights and personal orders" on page 6.
• A property order appoints a property manager to look after the person's property affairs. For more details, see page 13.

HOW THE FAMILY COURT DECIDES WHAT TO DO

When it makes decisions under the PPPR Act, the Family Court must protect and promote the personal and property rights of the person in question. In any particular case, the Court's two key goals are -

• to cause the least possible interference with the person's life
• to enable or encourage the person to use and develop whatever capacity they do have, as much as possible.

E NDURING POWERS OF ATTORNEY

The Protection of Personal and Property Rights Act (PPPR Act) allows people to plan for the possibility that they will lose the capacity to make or communicate decisions about their affairs. A person (called a "donor") can do this by giving an "enduring power of attorney" to one or more other people. This means the donor authorises the other people to act on the donor's behalf to manage his or her affairs.

Donors must not be incapacitated when they give the enduring power of attorney.

WHAT ISSUES CAN AN ENDURING POWER OF ATTORNEY COVER?

An enduring power of attorney can relate -

• to the person's personal care and welfare, or
• to their property, or
• to both.

WHEN DOES AN ENDURING POWER OF ATTORNEY TAKE EFFECT?

This depends on which type of enduring power of attorney it is -

• an enduring power of attorney for property can specify that it takes effect immediately - that is, it can take effect while the donor is still capable of making, understanding and communicating decisions - or it can state that it will take effect only if the donor loses this capacity
• an enduring power of attorney for personal care and welfare can take effect only when the donor becomes incapacitated.

HOW DO I CREATE AN ENDURING POWER OF ATTORNEY?

There is a special form for this that you must complete, sign and have witnessed. There is one form for an enduring power of attorney for property, and another for personal care and welfare.

You can get copies of the form from the local Family Court office. You can also download the forms from the Family Court website at www.justice.govt.nz/family .

People wanting to create an enduring power of attorney should ask a lawyer for advice and help.

WHO CAN BE AN ATTORNEY?

Any individual person can be an attorney as long as they are at least 20 years old, are not bankrupt, and are not subject to a personal or property order. They do not have to be a lawyer.

A trustee corporation can be an attorney for property, but not for personal care and welfare.

For more details on enduring powers of attorney, see the Age Concern publications listed on page 30.

HOW MANY ATTORNEYS CAN BE APPOINTED?

Only one personal care and welfare attorney can be appointed at a time, but more than one property attorney can be appointed.

PERSONAL RIGHTS AND PERSONAL ORDERS

WHAT IS A "PERSONAL ORDER"?

If someone becomes unable to make, understand or communicate decisions about their own personal affairs, and they have not previously given someone an enduring power of attorney, the Family Court can make a personal order for them under the PPPR Act.

A personal order is an instruction given by a Family Court Judge requiring a particular action to be taken to look after some aspect of an incapacitated person's care and welfare. For example, the Court might order that a specific kind of medical treatment be given to the person.

WHO CAN A PERSONAL ORDER BE MADE FOR?

The person must either -

• be unable, completely or partly, to understand decisions about their personal care and welfare and to foresee the consequences of those decisions, or
• be able to do those things but be completely unable to let others know about the decisions the person makes.

There are also residence and age restrictions -

• the Court can make personal orders only for people who usually live in New Zealand
• personal orders can be made for anyone who is 18 or older, but can also be made for 16- and 17-year-olds if they are or have been married, in a civil union or in a de facto relationship.

WHAT KINDS OF PERSONAL ORDERS CAN THE FAMILY COURT MAKE?

A personal order can do any of the following things -

• Arrangements for the person's care

- require a parent of the incapacitated person to arrange for the person's care after the parent dies

- require that those arrangements made by a parent be put into effect, or be changed

- specify what the person's living arrangements will be, or require the person to enter, attend or leave a particular institution (but not a psychiatric hospital or a licensed mental health institution)

• Medical and other services

- require the person to be given specific medical advice or treatment

- require the person to be provided with educational services, or with "rehabilitative" or "therapeutic" services (that is, services that may help or cure the person's condition), or other services

• Appointing someone to manage the person's affairs or to represent them

- appoint someone to represent the person in a District Court case

- appoint someone to manage any of the incapacitated person's property (but only for items worth $5,000 or less), or any income or benefit that belongs to the incapacitated person (but only if it's $20,000 or less per year)

- appoint a welfare guardian for the person (welfare guardians are explained on page 10).

• Payment for work

- require someone to pay the incapacitated person for work they have done or are going to do

• Overseas travel

- order the person not to leave New Zealand without the Court's permission, or to leave only on specified conditions.

INTERIM PERSONAL ORDERS IN URGENT CASES

The Family Court can make an interim personal order - for example, when the person needs urgent medical treatment.

An interim order can last for up to six months.

WHO CAN APPLY FOR A PERSONAL ORDER?

Any of these people can apply to the Court for a personal order -

• the incapacitated person himself or herself
• a relative of the incapacitated person (see below, "Who is a 'relative'?")
• someone to whom the incapacitated person has given a power of attorney (enduring powers of attorney are explained on page 5)
• a social worker
• a doctor
• a representative of any non-profit group that provides services and facilities for the welfare of people who are incapable of making, understanding or communicating decisions
• the person in charge of any hospital, home or other institution that the incapacitated person is in
• any person who has been appointed as a property manager for the incapacitated person's property (property managers are explained from page 13)
• any other person who has the Court's permission to apply.

WHO IS A "RELATIVE"?

A relative includes -

• a spouse (husband or wife), civil union partner or de facto partner of the incapacitated person
• a parent or grandparent of the incapacitated person (or of the incapacitated person's spouse or partner), including a step-parent in some cases
• a child, stepchild or grandchild of the incapacitated person (or of their spouse or partner)
• a brother or sister of the incapacitated person (or of their spouse or partner), including half-brothers and half-sisters
• an aunt or uncle of the incapacitated person (or of their spouse or partner)
• a nephew or niece of the incapacitated person (or of their spouse or partner).

HOW DO I APPLY FOR A PERSONAL ORDER?

You file an application for a personal order with the local Family Court office, using special forms. You can get the necessary forms from your local Family Court or from the Family Court website ( www.justice.govt.nz/family).

Before you apply, you may want to get advice and help from a lawyer. If you can't afford a lawyer, you may be able to get legal aid: see page 27.

For more about applying for an order and how the Court process works, see page 26.

HOW WILL THE FAMILY COURT DECIDE WHAT TO DO?

The Family Court will consider your application and the evidence that has been provided, and decide whether the order needs to be made.

The first question: Is the person incapacitated?

The Court must first decide whether the person is incapacitated - that is, whether they -

• are unable, completely or partly, to understand decisions about their personal care and welfare and to foresee the consequences of those decisions, or
• are able to do those things, but completely unable to let others know about the decisions the person makes.

The Court must not assume that the person is incapable just because someone has applied for an order. The Court must assume that the person is fully capable of making and understanding decisions and communicating them until someone proves otherwise.

The Court can't make an order merely because the person makes decisions that the average person wouldn't make.

The second question: Should an order be made?

If the Court is satisfied that the person is not capable of making, understanding or communicating decisions, it will decide whether it should make an order for the person, and if so, exactly what kind of order or orders. When it's deciding this, the Court has two main goals -

• to intervene as little as possible in the person's life, taking into account the extent of the person's incapacity, and
• to enable or encourage the person to use and develop whatever capacity they do have, as much as possible.

COURT CAN MAKE RECOMMENDATIONS

Instead of making an order, the Court can simply say what it thinks should happen. It is then up to the person who applied for the order and the person the application is about to decide if they want to follow the Court's recommendations. They are not required to follow them.

WHEN DOES A PERSONAL ORDER COME TO AN END?

The personal order will usually say exactly when it ends. If it doesn't say this, the order ends -

• when all the things the order said had to be done have in fact been done, or
• 12 months after the order was made,

whichever comes first.

The order can also state a date by which the Court will review the order. However, an order appointing a welfare guardian, or appointing a person to manage some of the incapacitated person's property, must set a date by which a review must be held, which must be within three years of the order. If the Court does set a review date, the order will expire on that review date unless the Court decides to extend the order.

WELFARE GUARDIANS

WHAT IS A WELFARE GUARDIAN?

A welfare guardian is someone the Family Court appoints to make decisions about the personal care and welfare of an incapacitated person, and to do the things necessary to put those decisions into effect.

If there's a specific or short-term problem, the Court will usually prefer to make other personal orders to deal with that problem, rather than appointing a welfare guardian.

WHEN CAN A WELFARE GUARDIAN BE APPOINTED?

The Court can appoint a welfare guardian for a person only if the Court is satisfied that -

• the person in question is completely unable to make or communicate decisions about their own personal care and welfare, and
• appointing a welfare guardian is the only satisfactory way to make sure that appropriate decisions are made for the person.

A welfare guardian can be appointed for anyone who is 18 or older. A welfare guardian can also be appointed for a 16- or 17-year-old if -

• the person is or has been married, or in a civil union or de facto relationship, or
• the person has no living parents or guardians, or
• no parent or guardian is in regular contact with the person and the Court thinks it would be in the person's interests to appoint a welfare guardian.

Welfare guardians can also be appointed if other kinds of personal orders are not carried out - for example, an order for the person to have specific medical treatment. It is a welfare guardian's role to make sure the order is carried out.

WHO CAN BE A WELFARE GUARDIAN?

The person the Court appoints must -

• be 20 or older
• be capable of carrying out a welfare guardian's duties satisfactorily
• be someone who will act in the incapacitated person's best interests, and
• not have any conflict of interest with the incapacitated person.

A person cannot be appointed as a welfare guardian unless they agree.

Normally only one welfare guardian will be appointed, but more than one can be appointed in special cases.

As far as practicable, the Court will find out who the incapacitated person wants to have as their welfare guardian.

HOW DO I APPLY FOR A WELFARE GUARDIAN TO BE APPOINTED?

You file an application with the local Family Court office, using special forms. You can get the necessary forms from the Family Court website ( www.justice.govt.nz/family) or from your local Family Court.

Before you apply, you may want to get advice and help from a lawyer. If you can't afford a lawyer, you may be able to get legal aid: see page 27.

Wherever possible, you should say in the application who you want to be appointed as the welfare guardian, whether this is you or some other person. The person you want appointed must complete and sign a written consent form, which you should include with the application.

For more about applying for an order and how the Court process works, see page 26.

WHAT DOES A WELFARE GUARDIAN DO?

A welfare guardian has the power to do everything that is reasonably necessary for them to make decisions for the incapacitated person and to carry out those decisions. But those decisions can only be about the issues the Court specified when it appointed the welfare guardian.

When welfare guardians are making and carrying out decisions, they must -

• promote and protect the incapacitated person's welfare and best interests
• encourage the person to develop and use whatever capacity they do have
• encourage the person to act on their own behalf wherever possible
• help the person to be, as much as possible, a part of the community
• consult with the person, and with other people the welfare guardian thinks can give competent advice about the person's care and welfare, including any relevant voluntary welfare group
• consult with the person's property manager, if the Court has appointed one.

If welfare guardians need guidance in carrying out their role, they can ask the Family Court to give them directions.

THINGS A WELFARE GUARDIAN CANNOT DO

A welfare guardian must not -

• make any decision for the incapacitated person to do with getting married or entering into a civil union, or to do with ending (dissolving) a marriage or civil union
• make any decision to do with the adoption of any of the incapacitated person's children
• refuse to allow the person to have any standard medical treatment or operation that is intended to save their life or prevent serious damage to their health
• allow the person to be given electro-convulsive treatment
• allow any surgery or other medical treatment that is intended to destroy any part of the person's brain, or to change the way their brain works, or to change their behaviour
• allow the person to be part of any medical experiment (except one to save the person's life or prevent serious damage to their health).

WHEN DOES THE WELFARE GUARDIAN'S APPOINTMENT COME TO AN END?

When it appoints a welfare guardian, the Family Court must set a date by which the welfare guardian must apply to have the order reviewed. This date must be no more than three years after the date of the order.

If the welfare guardian doesn't apply for a review by that date, the order and the welfare guardian's powers come to an end on that date.

The welfare guardian's powers will also come to an end if -

• the incapacitated person dies
• the welfare guardian dies, becomes bankrupt, is detained in a mental health institution, becomes subject to a property order, or otherwise becomes incapable of being a welfare guardian
• the Court discharges (cancels) the order when it reviews the order (see page 24).

PROPERTY RIGHTS AND PROPERTY ORDERS

COURT ORDERS DEALING WITH PROPERTY

There are two different types of orders the Family Court can make to deal with an incapacitated person's property -

• for smaller amounts of property, the Court can make a personal order appointing a person to manage that property (see page 7).
• if the Court thinks a person cannot manage their own property, it can make a property order appointing someone to manage the property (a property manager), up to any value.

A person who thinks they're not competent to manage their own property can also apply directly to a trustee corporation, rather than to the Family Court, for the corporation to act as their property manager. Other people can also apply to a trustee corporation for it to be a property manager for an incapacitated person, for property up to $100,000. For more details, see from page 21.

PERSONAL ORDERS FOR SMALLER AMOUNTS OF PROPERTY

If the Family Court thinks it's necessary, it can make a personal order appointing someone to manage any property, income or benefit belonging to an incapacitated person.

However, these personal orders can be made only for -

• an item of property worth no more than $5,000, or
• an income or benefit that is no more than $20,000 a year.

For more information about personal orders and when they can be made, see page 6.

WHEN WILL THE COURT MAKE A PROPERTY ORDER APPOINTING A PROPERTY MANAGER?

The first question: Can the person manage their property?

The Family Court can make a property order appointing one or more property managers for a person who is unable, partly or completely, to manage his or her own property affairs.

The Court must not assume that the person cannot manage their property just because someone has applied for an order. The Court must assume that the person is fully capable until someone proves otherwise.

The Court also can't appoint a property manager just because the person in question makes decisions about their property that the average person wouldn't make.

The second question: Should an order be made?

If the Court does think the person cannot manage their own property, partly or completely, it will decide whether or not to make the order, taking into account these two main goals -

• to intervene as little as possible in the person's affairs, taking into account the extent of the person's incapacity, and
• to enable or encourage the person to use and develop whatever capacity they do have, as much as possible.

The Court can take into account whether someone else has "undue influence" over the person - for example, if someone is pressuring the incapacitated person to do things with the property that benefit that other person.

Property managers can be appointed for a person of any age, and to manage property of any value.

TEMPORARY PROPERTY ORDERS IN URGENT CASES

If there is an urgent need to protect a person's property, the Court can make a temporary order appointing a temporary property manager while the Court is deciding whether to make a full property order.

A temporary order can last for a maximum of three months.

WHO CAN BE APPOINTED TO BE A PROPERTY MANAGER?

A property manager must either be -

• an individual who is 20 or older, or
• a trustee corporation (these are listed on page 22).

Property managers must also -

• be capable of carrying out their duties satisfactorily, and
• be someone who will act in the incapacitated person's best interests.

When deciding who to appoint, the Family Court will take into account any likely conflict of interest between the incapacitated person and the proposed manager.

A person cannot be appointed as a property manager against their will.

So far as is practicable, the Court must find out who the incapacitated person wants to have as their property manager.

HOW MANY MANAGERS CAN BE APPOINTED FOR A PERSON?

The Court can appoint more than one person as a property manager. If it does appoint more than one, the managers must make decisions together, unless the Court order says otherwise.

WHO CAN APPLY FOR A PROPERTY ORDER?

Any of the following people can apply to the Family Court for a property order -

• the incapacitated person himself or herself
• a relative of the incapacitated person (see page 8 for who is a "relative")
• someone to whom the incapacitated person has given a "power of attorney" (enduring powers of attorney are explained on page 5)
• a social worker
• a doctor
• a trustee corporation (these are listed on page 22)
• a representative of any non-profit group that provides services and facilities for the welfare of people who are unable to manage their own property
• the person in charge of any hospital, home or other institution that the incapacitated person is in
• the welfare guardian of the incapacitated person, if one has been appointed
• any other person who has the Court's permission to apply.

HOW DO I APPLY FOR A PROPERTY ORDER?

You file an application for a property order with the local Family Court office, using special forms. You can get the necessary forms from your local Family Court or from the Family Court website ( www.justice.govt.nz/family).

Before you apply, you may want to get advice and help from a lawyer. If you can't afford a lawyer, you may be able to get legal aid: see page 27.

For more information about applying for an order and how the Court process works, see page 26.

WHAT DOES A PROPERTY MANAGER DO?

Property managers can make decisions about what to do with the incapacitated person's property - for example, carrying out repairs, running a business, or selling or renting out a property. The decisions they make have the same legal effect as if they had been made by the incapacitated person.

A property order appointing a manager will state the specific rights and powers the Family Court has given the manager. The Court cannot give the manager any wider powers than are necessary, because the Court has a duty to intervene as little as possible when it makes an order.

There are some things property managers cannot do without the Court's permission. For example -

• buying or selling property worth more than $120,000
• giving more than $5,000 a year to charity
• granting a lease for 10 years or more.

DUTIES OF PROPERTY MANAGERS

When property managers are making and carrying out decisions, they must -

• promote and protect the incapacitated person's welfare and best interests
• encourage the person to develop and use whatever capacity they have for managing their own property affairs
• consult with the person, and with others who the manager thinks can give competent advice about managing the person's property, including any relevant voluntary welfare group
• consult regularly with any welfare guardian who has been appointed for the person
• follow the terms of any personal order made for the person.

PAYMENT OF PROPERTY MANAGERS

Property managers can claim expenses from the incapacitated person's property.

Apart from that, managers are usually not paid. However, they can apply to the Court to be paid for their role out of the incapacitated person's property.

ARE PROPERTY MANAGERS PERSONALLY RESPONSIBLE FOR THEIR DECISIONS?

Property managers can't be sued in Court for anything they do or don't do while acting as a property manager, unless they acted in bad faith or without reasonable care.

However, a property manager will be personally responsible for contracts or other arrangements they enter into and for liabilities they take on (a mortgage, for example) if they didn't first tell the person they were dealing with that they were acting as property manager for someone else's property.

Property managers can ask the Family Court to give them directions on how to carry out their role.

REPORTING BY PROPERTY MANAGERS

Property managers must report in writing to the Family Court about the property they are managing and how they are managing it.

They must produce a first statement within three months of beginning their role as property manager, summarising the assets and liabilities at the date on which the order was made.

After that, they must produce a statement each year, as long as their role as manager continues. These annual statements should include detailed statements of receipts and payments, together with a balance sheet or list of assets and liabilities.

They must also produce a final statement within 30 days after their role comes to an end.

Once the statements are filed with the Court, they are then examined by Public Trust (unless the manager is a trustee corporation).

It is a criminal offence to fail to file a statement, or to file a false statement.

POWER TO MAKE WILL

The fact that a property manager has been appointed doesn't affect the incapacitated person's power to make a will in the normal way, unless the Court orders that they need the Court's permission to do this.

If the Court does order this, or if it thinks the person isn't capable of making a will, it can authorise the property manager to make a will for the person in terms that the Court specifies. But before it does this, the Court will hear from everyone who wants to be heard on the proposed terms of the will and who the Court thinks has a proper interest.

EXISTING WILLS

The Family Court can investigate whether the incapacitated person made a will before the property manager was appointed.

If the Court thinks the person wasn't capable of managing their own property affairs when they made the will, the Court can try to find out whether the will expresses the person's present wishes. If it finds the will doesn't do this, the Court can authorise the property manager to make a new will that does express the person's present wishes.

PUTTING THE PERSON'S PROPERTY INTO TRUST

The Court may order that all or part of the property that is being managed be put into trust for the incapacitated person's benefit.

The Court can also order that any of this property be given to support or benefit members of the incapacitated person's family, or given to provide for people or purposes that the person might be expected to provide for if the person was competent to manage his or her own affairs.

THINGS THAT CAN'T BE DONE WITHOUT THE COURT'S PERMISSION

When a property manager has been appointed, no-one can do any of the following things without the Court's permission -

• take or continue any Court action against the incapacitated person (except under the Protection of Personal and Property Rights Act or in the High Court)
• enforce or seek to enforce any debt, Court judgment or Court order against the person (apart from a judgment or order under the PPPR Act)
• foreclose, enter into possession, sell, appoint a receiver or exercise any power under a mortgage, charge, instrument or other security over the person's property
• end a tenancy, or enforce any rights under a tenancy agreement that relates to the person's property.

WHEN DOES A PROPERTY MANAGER'S ROLE COME TO AN END?

A property manager's role comes to an end if -

• the incapacitated person dies
• the manager dies, becomes bankrupt, is detained in a mental health institution, becomes subject to a property order himself or herself, or otherwise becomes incapable of being a property manager
• the manager is one of two or more managers who were appointed with joint responsibility, and any of them has stopped acting for one of the reasons described in the previous point
• the Family Court discharges (cancels) the property order after reviewing it (see page 25), or
• the Court appoints someone else as property manager (in these cases the previous manager stops being a manager unless the Court orders otherwise).

APPLYING DIRECTLY TO A TRUSTEE CORPORATION TO ACT AS MANAGER

A person who is 18 or older and who believes they are not competent to manage their own property can apply directly to a trustee corporation for it to be their property manager, rather than applying to the Family Court for it to appoint a property manager. For how to apply, see page 22.

Certain other people can also apply directly to a trustee corporation for it to manage an incapacitated person's property, but only if the total value of the property is less than $100,000. Most of the people who can apply for a Family Court property order for an incapacitated person (see page 16) are entitled to apply under this provision. But a trustee corporation cannot itself apply, and nor can anybody else get the Court's permission to apply. For how to apply, see page 22.

The information on pages 17 to 21 about the role of property managers applies also to trustee corporations acting as property managers after an application made directly to the corporation, and not just to property managers appointed by the Family Court under a property order.

What is a trustee corporation?

A "trustee corporation" means any of the following -

• Public Trust
• the Maori Trustee
• Trustees Executors Ltd
• AMP Perpetual Trustee Co NZ Ltd
• PGG Trust Ltd
• New Zealand Permanent Trustees Ltd
• the New Zealand Guardian Trust Co Ltd.

Applications by an incapacitated person: How to apply

When an incapacitated person applies to a trustee corporation for it to manage the person's property, the application must -

• be in writing
• give details about the person's inability to manage their own property
• state the property the trustee corporation would manage and the rights and powers the corporation would have
• include certificates from two doctors, giving details about the person's inability to manage their own property. At least one of the doctors must not be otherwise involved with the incapacitated person or the person's relatives.
• include a statutory declaration signed by the incapacitated person, stating that they have had independent advice from a lawyer about the application and that they understand what the application means. The declaration must also state that the person understands they can end the trustee corporation's appointment with seven days written notice.
• be made within 30 days after whichever of the three documents referred to above (the two doctors' certificates and the statutory declaration) was made earliest.

Applications by others about small estates: How to apply

When someone other than the incapacitated person himself or herself applies to a trustee corporation for it to manage the incapacitated person's property, the application must -

• be in writing
• give details about the person's inability to manage their own property
• state the property that the trustee corporation would manage and the rights and powers the corporation would have
• include certificates from two doctors, giving details about the person's inability to manage their own property and saying whether they can understand what the application is about and what it will do. At least one of the doctors must not be otherwise involved with either the person making the application or the incapacitated person.
• also include a statutory declaration signed by the incapacitated person, stating that they have had independent advice from a lawyer about the application and that they understand what the application means. But this declaration is necessary only if either doctor's certificate says that the person can understand what the application is about and what it will do. The declaration must also state that the person understands that they can end the trustee corporation's appointment with seven days written notice.
• be made within 30 days after whichever of the three documents referred to above (the two doctors' certificates and the statutory declaration) was made earliest.

After the application is made

If the trustee corporation accepts the application, it must file a copy of it with the Family Court within 30 days.

Cancelling the trustee corporation's appointment

The person the trustee corporation is acting for can cancel the appointment at any time.

They do this by writing to the corporation, telling it they no longer want it to act as their property manager. The appointment comes to an end seven days after they give this notice to the corporation.

REVIEWS

Orders appointing welfare guardians and property managers must be reviewed within a set time, so that the Family Court can find out if they are still necessary. For other types of orders the Court can set a review date, but does not have to. This is explained further below.

REVIEWS OF PERSONAL ORDERS

When do reviews of personal orders have to take place?

If a personal order appoints someone to manage a small amount of the incapacitated person's property (see page 7) or appoints a welfare guardian (see page 10), the Family Court must set a date for the order to be reviewed, which must be within three years. The person appointed is responsible for applying for the review before the set date.

For any other type of personal order, the Court does not have to set a date for it to be reviewed, but can do so. If it does set a date, the Court must specify who is responsible for applying for a review by that date.

When the Court has set a review date, the order and the person's powers come to an end on that date, unless the Court decides to extend the order.

What is the purpose of a review?

The Family Court will decide whether the order is still necessary. It will review -

• whether the person is capable of understanding decisions about their personal care and welfare and of foreseeing the consequences of those decisions, or
• if the person is capable of this, whether they are able to communicate their decisions.

When reviewing an order appointing a welfare guardian, the Court will also review whether the reason the application was made still exists.

Can reviews happen at other times?

Yes. The following people can apply for a review of a personal order at any time -

• the incapacitated person himself or herself
• a welfare guardian
• a property manager
• anyone else who has the Court's permission to apply for a review.

Specific decisions made by welfare guardians can also be reviewed. The incapacitated person, or anyone else who has the Court's permission, can apply for a review of a decision at any time.

What can the Court do when it has reviewed the order?

When it has carried out the review, the Court can -

• vary (change) the order, or refuse to vary it
• discharge (cancel) the order, or refuse to discharge it
• extend the order for a further period
• if it has reviewed a welfare guardian's decision, make any order it thinks is appropriate.

If the Court extends the order, when it will it be reviewed again?

When the Family Court extends an order appointing a welfare guardian or appointing someone to administer the incapacitated person's property, the Court must also set a date by which the person appointed must apply for a further review.

That date must be no more than three years after the new order. However, in exceptional cases the Court can set that date up to five years after the new order, if the Court is sure an earlier review is not necessary.

If the Court extends other kinds of personal orders, the Court may set a date for another review, but does not have to. If it does set a date for a review, the Court must specify who is responsible for applying for a review by that date.

REVIEWS OF PROPERTY ORDERS

When do reviews of property orders have to take place?

When the Family Court appoints a property manager, the Court must set a date for the order to be reviewed, which must be within three years. The property manager is responsible for applying for the review before the set date.

Unlike personal orders, the property order does not come to an end merely because the manager does not apply for the review by the set date.

What is the purpose of a review?

The Court will review the competence of the incapacitated person, except when the order is being reviewed to appoint a new manager.

Can reviews happen at other times?

Yes. The following people can apply at any time for a property order to be reviewed -

• the incapacitated person himself or herself
• the manager or welfare guardian acting for the person
• any of the people who could have applied to the Court for a property order (see page 16)
• anyone else who has the Court's permission to apply for a review.

Specific decisions made by property managers can also be reviewed. The incapacitated person, or anyone else who has the Court's permission, can apply for a review of a decision at any time.

What can the Court do when it has reviewed the property order?

When it has carried out the review, the Court can -

• vary (change) the order, or refuse to vary it
• discharge (cancel) the order, or refuse to discharge it
• extend the order for a further period (in that case the Court must set a date for a review, which must be within three years of the new order)
• if it has reviewed a property manager's decision, make any order the Court thinks is appropriate.

If the Court extends the order, when it will it be reviewed again?

When the Court extends a property order, the Court must also set a date by which the property manager must apply for a further review.

That date must be no more than three years after the new order. However, in exceptional cases the Court can set that date up to five years after the new order, if the Court is sure an earlier review is not necessary.

The property order does not come to an end merely because the date set by the Court for the further review has been reached.

Reporting by trustee corporations

If a trustee corporation has accepted an application to act as property manager for an incapacitated person (see page 21), the corporation must later file reports with the Family Court from two doctors and from the corporation itself about the person's current level of competence, or lack of it, to manage their own property.

The corporation must file these reports between two and three years after the corporation filed a copy of the original application with the Court.

The Court can order a full review of the case if it thinks this is appropriate.

HOW THE COURT PROCESS WORKS

HOW DO I APPLY FOR AN ORDER UNDER THE PPPR ACT?

It's not difficult to apply. You will need to fill out special forms, which are available from the Family Court website ( www.justice.govt.nz/family) or from your local Family Court.

The staff at the Family Court will help you apply. But they cannot give you legal advice for your particular situation. For legal advice, you will need to see a lawyer. If you can't afford a lawyer, you may be able to get one through legal aid: see page 27.

Copies of the application must normally be served on (given personally to) the person the application is about. The application must also be served on a number of other people interested in the person's welfare - parents, for example.

A COURT-APPOINTED LAWYER

The Court will appoint a lawyer to represent the person the application is about. This Court-appointed lawyer will contact the person and, as far as practicable, help them understand the application.

The lawyer will report to the Court about the application and the surrounding circumstances, and make recommendations.

WHAT COURT HEARINGS WILL THERE BE?

A pre-hearing conference may be held to try to resolve matters by discussion. If that is not successful, there will be a full Court hearing.

The person the application is about must normally be present both at any pre­hearing conference and at the Court hearing. At the hearing they may speak to the Court directly, and without parents, guardians and lawyers being present.

The Family Court processes under the Protection of Personal and Property Rights Act are less formal than usual, while also protecting the rights of the person the application is about.

WHAT EVIDENCE WILL THE COURT HEAR?

The Family Court can hear any evidence, even if it is not the sort of evidence a Court would normally allow.

The person concerned is entitled to be heard and to call witnesses. The Court itself can also call witnesses.

The Court can ask for medical, psychiatric or psychological reports on the person.

ARE PPPR ACT CASES OPEN TO THE PUBLIC?

No, the pre-hearing conference and the hearing are closed to the public. Cases cannot be reported in the news media, unless the Court allows this.

Those rules also apply to any later review hearings.

LEGAL AID

WHAT IS LEGAL AID?

Anyone who needs a lawyer but can't afford one may be able to get legal aid. This is where the Government pays some or all of the lawyer's bills (sometimes you may have to pay some or all of it back).

Legal aid is available for all Family Court cases, including under the Protection of Personal Property Rights Act, except dissolution of marriages and civil unions (divorce).

HOW CAN I FIND OUT ABOUT LEGAL AID?

You can get information on legal aid by –

• contacting your local Legal Aid Services office, based at your local District Court (see the blue Government pages at the front of the phonebook)
• visiting the Legal Aid Services pages on the Ministry of Justice website at www.justice.govt.nz/services/getting-legal-aid, or
• seeing a lawyer and discussing legal aid with them.

GLOSSARY - KEY TERMS USED IN THE PPPR ACT

ENDURING POWER OF ATTORNEY

This is where a person who is capable (called the "donor") authorises one or more other people to act on the donor's behalf to manage his or her affairs: see page 5.

An enduring power of attorney can relate to the donor's property or to their personal care and welfare, or both. Only one personal care and welfare attorney can be appointed at a time. More than one property attorney can be appointed.

PERSONAL ORDER

If a person becomes unable to make, understand or communicate decisions, the Family Court can make a personal order to protect them. A personal order is an instruction given by a Family Court Judge requiring a particular action to be taken to look after some aspect of an incapacitated person's care and welfare. See page 6.

PROPERTY

In the PPPR Act, "property" includes all types of property, such as land, buildings, businesses, money, income and investments. It includes any interest in the property and any right or power that the person has in relation to the property.

PROPERTY MANAGER

This is a person who has been appointed by the Family Court to manage property belonging to an incapacitated person on that person's behalf, or a trustee corporation that accepts an application to act as property manager and files the application with the Court. See page 13.

WELFARE GUARDIAN

This is someone the Family Court appoints to make decisions about the personal care and welfare of an incapacitated person, and to do the things necessary to put those decisions into effect. See page 10.

NEED MORE INFORMATION AND ADVICE?

INFORMATION FROM THE FAMILY COURT

For more information about the Protection of Personal and Property Rights Act 1988 and other Family Court matters, contact the nearest Family Court office or look on the Family Court website ( www.justice.govt.nz/family).

Application forms can be downloaded from the website.

GETTING LEGAL ADVICE FROM A LAWYER

If you want to find out how the PPPR Act applies in your situation, you should get legal advice from -

• a family lawyer (visit www.familylaw.org.nz ), or
• your local community law centre (for contact details, visit www.communitylaw.org.nz/).

Family Court staff cannot give you legal advice.

OTHER SOURCES OF INFORMATION

Publications and videos

• Do You Have an Enduring Power of Attorney?: Planning for Your Future - This short pamphlet, published by Age Concern New Zealand, explains what an enduring power of attorney is and how to set one up.
• Planning Your Future with the Protection of Personal and Property Rights Act 1988 and Enduring Powers of Attorney - This 40-page booklet, also published by Age Concern, gives information on how a person can manage their affairs through the use of enduring powers of attorney. It also describes what happens if you lose capacity and do not have an enduring power of attorney in place.

Contact:

Age Concern New Zealand
PO Box 10-688,
Wellington
Ph: (04) 801 9338
Email: national.office@ageconcern.co.nz
Website: www.ageconcern.org.nz

• The Protection of Personal and Property Rights Act 1988 - A Resource Pack & Guide for those working with the Act - This resource pack, published by Northland Health in CD format in 2004, has been developed to help social workers understand and use the PPPR Act. It includes relevant forms, a flowchart of the application and Court processes, guidelines for applying under the Act, and information about making an enduring power of attorney.

Contact:

Community Health Services,
Northland Health
PO Box 256,
Kaitaia

• Power to Care - This user-friendly video, produced by Educational Resources, illustrates the issues and options for managing your affairs under the PPPR Act. You may be able to borrow this video from your local Court or community law centre.

Contact:

Educational Resources
PO Box 19050,
Wellington
Ph: (04) 801 7066
Email: enquiries@edresources.co.nz
Website: www.edresources.co.nz

Organisations

• Citizens Advice Bureaux offer free information, support and advice about anything and everything - from laws such as the Protection of Personal and Property Rights Act, to information on benefits, to contact numbers for local or national clubs and organisations.

Contact: your nearest Citizens Advice Bureau

Ph: 0800 FOR CAB (0800 367 222)
Website: www.cab.org.nz

• New Zealand CCS provides services to people with disabilities and their families, whanau and caregivers throughout New Zealand. The CCS Information Service provides information on all aspects of disability.

Contact:

PO Box 6349,
Marion Square,
Wellington (National Office)
Ph: (04) 384 5677
Email: info@no.ccs.org.nz

• Alzheimers NZ assists and supports carers, families and health professionals dealing with Alzheimer's Disease or a related dementia, through its National Office in Christchurch and its 22 member groups throughout the country.

Contact:

PO Box 3643,
Wellington (National Office)
Ph: 0800 004 001 to contact a local member organisation, or (04) 381 2362 for National Office
Email: nationaloffice@alzheimers.org.nz
Website: www.alzheimers.org.nz

• IHC NZ has a large collection of information on intellectual disability, including legal and ethical issues. It also has an advocacy team, which can advise on legal issues involving people with disabilities.

Contact:

Lvl 15, Willbank House,
57 Willis St,
Wellington (National Office)
Ph: 0800 472 2247
Website: www.ihc.org.nz

Where to get copies of the PPPR Act

Copies of the Protection of Personal and Property Rights Act 1988 are available in libraries. You can also buy copies from Bennetts Government Bookshops.

www.justice.govt.nz/family
Courts 044
July 2007