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This section provides a guide to the Protection of Personal and Property Rights Act. It includes information on personal orders, welfare guardians, property rights, property orders and enduring powers of attorney.

Contents

Introduction

Objects of the Act

Who is covered by the Act?

What does the Court have to consider?

How do I make an application under the Protection of Personal and Property Rights Act?

Completing an application

Application for an enduring power of attorney

Application for personal order

Application to appoint a welfare guardian

Application for a property order

Appointment of a lawyer

Pre-hearing conference

Introduction

The Protection of Personal and Property Rights Act 1988 assists adults who, because of incapacity, are no longer able to make or communicate decisions or manage their own affairs.

Objects of the Act

The primary objectives of the Court are to make the least restrictive intervention in the person's life having regard to their incapacity and to enable the person to exercise and develop their capacity as much as is possible.

Who is covered by the Act?

The Act can apply to a wide range of people including the mentally ill, infirm elderly, intellectually disabled, people who are paralysed and victims of head injuries.

Many people incorrectly believe that a spouse, parent or next of kin can legally make decisions on behalf of a 'mentally incompetent' relative without that relative's specific authorisation.

The Act deals separately with personal and property rights. It allows for the appointment of welfare guardians and property managers in two separate circumstances:

Anyone can choose to grant another person an enduring power of attorney to look after their personal affairs or property.
If a person lacks the capacity to manage their own affairs, an application can be made to the Family Court to make personal or property orders for their benefit. Alternatively, an application can be made to appoint a welfare guardian or a property manager.

What does the Court have to consider?

In making decisions under the Act the Family Court must protect and promote the personal and property rights of people needing protection. In making any orders the Court considers the following:

That the order causes the least interference with the person's life.
That the person is encouraged to use and develop their capacity to the greatest extent possible.
That the welfare and best interests of the person subject to the order are paramount.

This Act operates alongside the Mental Health (Compulsory Assessment and Treatment) Act 1992 and the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.

Enduring Powers of Attorney

What is an Enduring Power of Attorney?

The Protection of Personal and Property Rights Act enables people to authorise another or others to act on their behalf to manage their affairs.

An enduring power of attorney may relate to the person'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.

How can an enduring power of attorney be completed?

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

There are two types of enduring power of attorney;

in relation to property and;
in relation to personal care and welfare.

A form of enduring power of attorney in relation to property (RTF) must be completed, signed and witnessed.

A form of enduring power of attorney in relation to personal care and welfare (RTF) must be completed, signed and witnessed.

Who can be an attorney?

An attorney does not have to be a lawyer.

You must be at least 20 years old, not bankrupt and not subject to a personal or property order.

A trustee corporation cannot act as an attorney for personal matters.

When does an enduring power of attorney take effect?

A property enduring power of attorney may come into effect at the point it is created and while the person has his or her capacities, or may come into effect when capacity is lost.

Personal care and welfare enduring power of attorney can only take effect when capacity is lost.

Further Information

For more information on enduring power of attorney see the Community Law Centre and Age Concern

Personal Orders

What is a Personal Order?

If a person becomes incapacitated and unable to make decisions, the Court can make a personal order for their protection.

A personal order is an instruction given by a Judge requiring an action to be taken to look after a specific part of an incapacitated person's care and welfare.

Who would the Court make a Personal Order for?

The Court can only make personal orders for people who ordinarily 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.

The person must either:

Lack wholly or partly, 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
Have these capacities but totally lack the capacity to communicate decisions about their personal care and welfare.

The Court will not make a personal order for a person who has granted someone an enduring power of attorney unless the enduring power of attorney is not working properly to protect their best interests.

Who can apply for a Personal Order?

The following people can apply :

A person who lacks capacity.
A relative or attorney of the incapacitated person.
A social worker.
A medical practitioner.
A representative of any non-profit group that provides services and facilities for the welfare of the people covered by the Act.
The superintendent, licensee, supervisor or person in charge, if the person is a patient or a resident of a hospital, home or other institution.
The manager of a person's property if the person is subject to a property order.
Any other person with the Court's permission.

Who is considered a relative?

A spouse or de facto partner of that person.
A parent or grandparent of that person or of his or her spouse or de facto partner.
A child, stepchild or grandchild of that person or of his or her spouse or de facto partner.
A brother or sister of that person or of his or her spouse or de facto partner.
An aunt or uncle of that person or of his or her spouse or de facto partner.
A nephew or niece of that person or of his or her spouse or de facto partner.

Before making an application you should seek the advice and assistance of a lawyer.

To apply for a personal order, an application must be filed with your local Family Court.

How do I apply for a Personal Order for someone else?

Before making an application you should seek the advice and assistance of a lawyer.

To apply for a personal order, an application must be filed with the local Family Court office.

What will the Family Court do?

The Family Court will consider the evidence and decide whether the order is necessary. The Court must decide:

1. That the person concerned either;

Lacks wholly or partly, 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

Has these capacities but totally lacks the capacity to communicate decisions about their personal care and welfare;

2. That a personal order should be made.

3. What kinds or orders should be made.

The Court does not have the power to make an order just because the person under consideration makes decisions that the average person would not make.

The Court may recommend what it thinks should be done, instead of making an order. Applicants and people who lack capacity can then decide if they want to follow the Court's recommendations.

What kinds of Personal Orders can the Court make?

The Court can make a range of personal orders including:

a. An order requiring someone to pay an incapacitated person for work they have performed or are going to perform.

b. An order requiring a parent or parents to make suitable arrangements for their child's personal care after their death.

c. An order requiring that arrangements made for the personal care of the incapacitated person after the parent's death be observed, or varied.

d. An order requiring that an incapacitated person be provided with specified residence and living arrangements. This does not include psychiatric hospitals or licensed institutions under the Mental Health (Compulsory Treatment and Assessment) Act 1992.

e. An order for medical advice or treatment.

f. An order for educational, rehabilitative, therapeutic or other services.

g. An order requiring an incapacitated person not to leave New Zealand without the permission of the Court, or only on specified conditions.

h. An order appointing a representative or guardian ad litem for an incapacitated person in any District Court proceedings.

i. An order appointing someone to administer any item of specified property which is worth $5,000 or less, or any income or benefit worth $20,000 or less a year.

j. Under section 12 of the Act, an order appointing a welfare guardian for the person.

The Court may make an Interim Order; for example when urgent medical treatment is required.

When does a Personal Order expire?

A personal order expires at the time set in the order.

If no time is set, the order stops when all tasks set in the order are completed, or 12 months after the order was made, whichever comes first.

The Court may also specify a date to review the order.

Review of Personal Orders

What is the purpose of a review?

At the review the Court must determine whether the order is still necessary.

The Court will review the person's capacity to:

understand the nature of decisions about their own personal care and welfare,
foresee the consequences of such decisions, and
communicate such decisions.

For welfare guardianship orders, the Court should also ensure that the reason the application was made still exists.

Who may seek a review?

An application for review of a personal order may be made by:

The person themselves
The welfare guardian
The manager
Any other person with leave of the Court.

When must reviews take place?

For orders appointing a welfare guardian, the Family Court must set a date for the order to be reviewed within three years.

The welfare guardian is responsible for applying for the review before the term of the order expires.

A renewal of an order can be made for five years.

For any other personal order, the Court may set a date for the order to be reviewed. The Court must specify who is to apply for the review.

Can they occur at other times?

Yes. An application for review of a decision of a welfare guardian can be made at any time by the person concerned, or any other person who has the Court's permission.

What can the Court do on a review?

As a result of a review, the Court can:

Vary or refuse to vary an order.
Discharge or refuse to discharge an order.
Extend the period of the order. In that case the Court must then set a date for review.
Make an order in relation to a welfare guardian's decision that has been reviewed.

Welfare Guardians

What is a Welfare Guardian?

A welfare guardian is someone appointed by the Family Court to make and implement decisions on behalf of a person in relation to all aspects of their personal care.

When would a welfare guardian be appointed?

The Court must believe that the appointment of a welfare guardian is the only satisfactory way to ensure that appropriate decisions are made for a person.

The person must wholly lack the capacity to make or communicate decisions about an area or areas relating to their personal care and welfare.

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 in a 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 their interests to appoint a welfare guardian.

Welfare guardians may also be appointed if other kinds of personal orders (for example, that the person be provided with specified medical treatment) are not carried out.

It is a welfare guardian's role to take all reasonable steps to ensure the order is complied with.

Who can be a Welfare Guardian?

As far as possible, the Court will find out whom the person lacking capacities wishes to have as their guardian.

The Court can only appoint a person over the age of 20 years of age who:

Is capable of carrying out the duties of a welfare guardian in a satisfactory manner.
Will act in the best interests of a person who lacks capacity.
Consents to being appointed.
Does not have a conflict of interest with the person who lacks capacity.

Normally only one welfare guardian will be appointed for a person who lacks capacities. In an exceptional case, more than one may be appointed.

What does a Welfare Guardian do?

A welfare guardian has all reasonable powers to make and carry out decisions for the person, in the areas specified in the Court order.

In making and carrying out decisions, the welfare guardian must:

Promote and protect the welfare and best interest of the person for whom they are acting;
Encourage the person for whom they are acting to develop and exercise any capacity they have;
Encourage the person for whom they are acting to act in their own interest wherever possible;
Assist the person to be, as much as is possible, a part of the community;
Consult the person, and others that they consider are interested in and competent to advise on the personal care and welfare of that person, including any relevant voluntary welfare agency; and
Consult with the property manager if the person is subject to a property order.

If a welfare guardian needs guidance in exercising or carrying out their powers under an order, they may apply to the Court for directions.

What is a welfare guardian not able to do?

A welfare guardian may not:

Make any decision relating to marriage or civil union, or dissolution of marriage or civil union, on the part of the subject person.
Make any decision relating to the adoption of any child of that person.
Refuse consent to the administering to that person of any standard medical treatment or procedure intended to save the person's life or to prevent serious damage to the person's health.
Consent to the administering to that person of electro-convulsive treatment.
Consent to the performance on that person of any surgery or other treatment designed to destroy any part of the brain or any brain function for the purpose of changing the person's behaviour.
Consent to that person taking part in any medical experiment other than one conducted to save the person's life or preventing serious damage to the person's health.

When does the order for a welfare guardian expire?

The Court is required to set a date by which time the welfare guardian must apply for a review of the order.

The date specified by the Court must be within three years from the date of the order.

If the welfare guardian does not apply for a review prior to the expiry of the order, the order and the powers granted under that order will expire.

The powers will also expire if:

The person for whom the welfare guardian is acting dies.
The welfare guardian dies, becomes bankrupt, or becomes incapable of acting.
The order is discharged by the Court on a review of that order.

Property Orders

Does an application always have to be made to the Family Court if someone becomes unable to manage their own property affairs?

No. In some cases, instead of applying to the Court, an incapacitated person can apply in writing directly to a trustee corporation and ask the corporation to act as the manager of property or any part of it.

Applications to a Trustee corporation

Special conditions apply to this type of application.

The application must:

Specify the property to be managed and the rights and powers the applicant wishes the trustee corporation to exercise.
Be accompanied by certificates from two registered medical practitioners (at least one of whom must be a psychiatrist and not otherwise involved with either the application or the person who lacks competence). The certificates must state the extent of the person's lack of competence to manage their own property affairs.
Be accompanied by a statutory declaration signed by the person who lacks competence. The declaration must state the person has received independent legal advice about, and understands the nature, purposes and consequences of the application. The declaration must also state the person understands the right to end the trustee corporation's appointment on seven days written notice.

Where the total value of an incapacitated person's property is less than $100,000, any other person who is eligible to apply for a property order for the incapacitated person, can apply directly to a trustee corporation and ask it to manage the incapacitated person's property.

What happens if the Trustee corporation accepts the application?

When the Trustee corporation accepts the application, it must file a copy of the application with the Court within 30 days.

Can the appointment be cancelled?

Yes. If a Trustee corporation is appointed in this way, the appointment can be cancelled by the person the corporation is acting for.

The person can do this by notifying the corporation in writing that they no longer want the corporation to act as property manager.

The appointment is cancelled seven days after the notice is given to the corporation.

Applications for Property Orders

Who can apply for a Property Order?

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

An incapacitated person in respect of themselves.
A relative or attorney of the incapacitated person.
The person who has power of attorney of the person's affairs.
A social worker.
A medical practitioner.
A Trustee corporation.
A representative of any non-profit group that provides services and facilities for the welfare of people covered by the Act.
The superintendent, licensee, supervisor of person in charge, if the person is a patient or resident of a hospital, home or other institution, if the person concerned is a patient or resident there.
The welfare guardian of the person concerned, if one has been appointed.
Anyone else with the Court's permission.

What if the application is urgent?

The Court can make a temporary order appointing a temporary property manager where there is urgent need to protect the property of a person, while a property order application for the appointment of a manager is being determined.

A temporary order cannot last for more than three months.

What is a personal order to manage property?

The Court may appoint a person to administer any property, income or benefit belonging to an incapacitated person.

Personal orders to administer property can only be made in relation to any item of property worth less than $5,000, or any income or benefit that is less than $20,000 per year.

What is a Property Manager?

The Court can appoint a property manager or managers for a person of any age who lacks, wholly or partly, the competence to manage their own property affairs.

In deciding whether to appoint a property manager for a person, the Court may consider whether the person is subject to undue influence in the management of their property affairs.

The Court cannot appoint a property manager just because the person concerned manages their property in a way that the average person would not.

So far as is practicable, the Court must find out the wishes of the person for whom a property order is sought about who should be appointed.

The Court can appoint more than one person as a property manager.

If more than one manager is appointed, the managers will have joint responsibility for management unless the Court decides that each manager can exercise their management powers without having to get the agreement of the other manager or managers.

Property managers can be appointed to manage property of any value.

Who can be appointed to manage property?

A property manager must either be:

A person of at least 20 years of age, or
A trustee corporation.

Like welfare guardians, property managers must:

Be capable of carrying out their duties in a satisfactory manner.
Act in the best interests of the person for whom they are appointed.
Consent to be appointed.

What does a Property Manager do?

Each property order made by the Court lists the specific rights and powers given to the property manager appointed by the order.

In making the order, the Court must grant only the powers necessary in the circumstances because it has a duty to make the least restrictive intervention possible.

So far as is practicable, the Court must find out the wishes of the person for whom a property order is sought about who should be appointed.

The Court can appoint more than one person as a property manager.

Several actions by property managers require the consent of the Court. For example:

Buying or selling property worth over $120,000.
Making charitable donations over $5,000 a year
Granting a lease of 10 years or more.

Every decision made by a property manager has the same effect as if it had been made by the incapacitated person.

What are the duties of a property manager?

In making and carrying out decisions, property managers must:

Promote and protect the interests of the incapacitated person.
Encourage the person to develop and exercise such competence as the person has to manage their own property affairs.
Consult the incapacitated person and other competent individuals and/or welfare groups that are interested in the incapacitated person's welfare.
Consult on a regular basis with any welfare guardian appointed for the person.

Property managers must also follow the terms of any personal order made for the incapacitated person.

What does the appointment of a property manager mean?

When a property manager has been appointed no-one can, without the Court's permission:

Bring or continue proceedings (apart from proceedings under the Act) against the person.
Enforce any debt, judgment or order (apart from a judgment or order under the Act) against the person.
Foreclose, enter into possession, sell, appoint a receiver or exercise any power under a mortgage, charge or security instrument over the person's property.
Determine a tenancy, or enforce any rights under a tenancy agreement.

Are there controls on the powers of Property Managers?

The property manager must file financial statements containing details of the management of the property concerned in the Court.

The financial statements must be filed at the beginning and end of the managership and annually during the managership.

The initial financial statement is a summary of the assets and liabilities at the date on which the order was made.

Annual financial statements should include detailed statements of receipts and payments, together with a balance sheet or list of assets and liabilities.

Statements filed by a trustee corporation are examined by Public Trust.

It is an offence to file a false statement or to fail to file a statement.

Can a person make a will if a property manager has been appointed?

Yes. Unless the Court directs otherwise, the appointment of a property manager does not affect the power of the person to make a will in the normal way.

The Court can try and find out whether a will that was made before a person became subject to a property order was made when the person was unable to manage his or her own property affairs. If the Court finds out that the will was made in this situation, it can make further inquiries to find out whether the will gives effect to the present wishes of the person.

If the will does not do this, the Court can take steps to find out the person's present wishes and can authorise the property manager to make a new will for the person to give effect to these wishes.

The Court can also direct that a person under a property order can make a will only with the permission of the Court.

In some cases the Court can authorise the property manager to make a will for the person.

When a will is made by a property manager, the Court will settle the terms of the will on a provisional basis.

It will hear the people who wish to be heard and whom it considers have a proper interest in the matter.

The Court then authorises the property manager to make a will, the terms of which are settled by the Court.

Settlement of a person's property

The Court may order that all or part of property under management be put into trust for the benefit of the incapacitated person.

It may also order that any of this property be given for the maintenance or benefit of members of the person's family, or to people or purposes that the person might be expected to provide for if he or she was competent to manage his or her own affairs.

When does a property manager's appointment end?

A property manager stops acting if:

The person for whom the manager is acting dies.
The manager dies.
The manager is adjudged bankrupt.
The manager becomes a special patient or a patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992.
The manager becomes subject to a property order or otherwise becomes incapable or acting.
More than one manager is appointed, and one of them ceases to act in any of the above circumstances. This only applies if they have joint responsibility.
The property order is discharged by the Court.
Another person is appointed as property manager. In this case the previous manager will cease to act unless the Court orders otherwise.

Are property managers paid?

Normally property managers are not paid, but they can apply to the Court for remuneration from the incapacitated person's estate.

Property managers can claim expenses from the estate.

Can a Property Manager be personally liable?

Property managers are personally liable only when entering into contracts or arrangements without disclosing to the other party that they are acting in their capacity as property manager under the Act, or if they act in bad faith or without reasonable care.

If a property manager does not act in good faith and with reasonable care, they may become legally liable for their actions.

Property managers can ask the Court for directions in relation to exercising their rights and powers.

Review of Property Orders

When must reviews take place?

The Court must set a date for the property order to be reviewed within three years.

The property manager must apply for the review.

If a trustee corporation has accepted an application to act as property manager, the corporation must file reports not earlier than two years or later than three years after the date of filing the application in the Court.

Can reviews take place at other times?

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

The person in respect of whom the order was made.
The manager or welfare guardian acting for the person.
Any of the people who could have applied to the Court for a property order.
Anyone else who is given permission by the Court.

Except where a property order is being reviewed to appoint a new manager, the Court must review the competence of the person subject to the order.

The person concerned or any other person who has the Court's permission can make an application for review of a decision by a property manager at any time.

What can the Court do on a review?

As a result of a review, the Court can:

Vary or refuse to vary an order.
Discharge or refuse to discharge an order
If the Court makes an order extending the original property order, it must specify another date for review being a date at least three years after the last review.

How do I make an application under the Protection of Personal and Property Rights Act 1992?

It is not difficult to apply.

The Act contains procedures which make cases less formal, while also protecting the rights of the people who are the subject of applications and orders.

Completing an application

Please ensure that the documents you file are neat and easy to read.

Do not forget to sign and date the application form.

Applications should be filed at your nearest Family Court

1. Applications for an Enduring Power of Attorney

The following forms need to be completed.

Enduring power of attorney in relation to property (RTF) and, or

Enduring power of attorney in relation to personal care and welfare (RTF)

2. Application for a Personal order

To make an application for a personal order you need to read the guidelines on the application process and completing the forms.

You need to complete the following documents:

PPPR 14 Information Sheet

PPPR 1 Front page

PPPR 3 Application for personal order in respect of applicant

Or

PPPR 4 Application for personal order

3. Application for the appointment of a welfare guardian

Where possible the applicant should name the person to be appointed.

The application should also include the consent in writing of the person to be appointed.

To make an application for a welfare guardian you need to read the guidelines on the application process and completing the forms.

You need to complete the following documents:

PPPR 14 Information Sheet

PPPR 1 Front page

PPPR 7 Application Form for appointment of welfare guardian for applicant

Or

PPPR 8 Application Form for appointment of welfare guardian

and

PPPR 16 Statement of consent to appointment as welfare guardian

4. Application for a property order

To make an application for a property order you need to read the guidelines on the application process and completing the forms.

You need to complete the following documents:

PPPR14 Information Sheet

PPPR 1 Front page

and

PPPR10 Application for property order in respect of applicant's property

Or

PPPR 11 Application for property order

Or

PPPR 5 Application for order to administer property of applicant

Or

PPPR 6 Application for order to administer property

Applications to the Court must normally be served on the person for whom the order is sought, and are also served on a number of others interested in their welfare, such as their parents.

Appointment of a lawyer

The Court will appoint a lawyer to represent the person who is the subject of the application if they do not have their own lawyer.

The Court appointed lawyer must make contact with the person and help them understand the application as much as is practicable.

The lawyer will report on the circumstances of the application and make recommendations to the Court.

The Court will pay the Court appointed lawyer.

Pre hearing conferences

Pre-hearing conferences can be held to try to resolve matters by discussion.

The person for whom the order is sought must normally be present at the conference and at the hearing.

At the hearing they may speak to the Court directly and without parents, guardians or lawyers present.

The pre-hearing conference and the hearing are not open to the public.

Specialist report

The Court may request medical, psychiatric, psychological or other reports on the person concerned.

Court hearing

Any evidence may be heard, even if it is not the sort the Court would normally allow.

The person concerned is entitled to be heard and call witnesses.

The Court itself may call witnesses.

Legal Aid

Legal aid is available for protection of personal and property rights matters.

Information about your eligibility for Legal Aid

A lawyer or local Community Law Centre can also help with applications for legal aid.

Further Information

Pamphlet The Protection of Personal and Property Rights Act 1988

Planning Your Future With Enduring Powers of Attorney: Using the Protection of Personal and Property Rights Act 1988.

This booklet provides information on the way in which 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.

Power to Care: A video explaining The Protection of Personal and Property Rights Act 1988, produced by Educational Resources, PO Box 19050, Wellington. This video illustrates the issues and options for managing your affairs under the Act. You may be able to borrow it from your local Family Court or Community Law Centre.