Two brothers were appointed as joint Property Managers for their mother, as she had lost capacity to make her own decisions.  Only one of the brothers was appointed as Welfare Guardian.  When it came time for their mother to move into a rest home, they began to argue about who had the right to make the required decisions.

They sought to clarify their rights as to their roles as Property Managers and Welfare Guardian and how those roles fit together.

Property Managers

Property Managers under the Protection of Property and Personal Rights Act are people appointed to make decisions about another person’s assets and property in the event that the person (called the ‘subject person’) is unable to manage their property and financial affairs themselves.

Property Managers are appointed by application to the Family Court and approved by a Judge.

To be eligible to be appointed as a Property Manager you must be over the age of 20 years. Property Managers can be either an individual or multiple individuals or a trustee corporation.

Where multiple individuals are appointed, their responsibility is jointly held unless the Court orders otherwise. This means they have to make all decisions together.

When appointing a Property Manager, the Family Court Judge will not appoint a person or organisation if it is likely to raise a conflict of interest.  An example of this is where an individual resides in a rest home, the person in charge of that rest home cannot be appointed as the subject person’s Property Manager.

Property Managers must satisfy the Family Court that:

• they are capable of carrying out their duty (in contemplation of the needs of the subject person and the relationship they may already have);
• they will act in the best interests of the subject person; and
• they consent to the appointment.

Property Managers can be given various powers by the Family Court. Generally, these include managing the subject person’s finances and bank accounts (including any bills that need to be paid), buying or selling property (up to a certain threshold as determined by the Family Court) and managing any business that the subject person may own and operate.

Welfare Guardians

Welfare guardians are also appointed by the Family Court to make decisions on behalf of the subject person about their daily care and welfare arrangements. These are generally reserved for circumstances which are ongoing and therefore require a longer-term care arrangement.

Alternatively, where there is a short-term circumstance, the Judge may look to make a limited care arrangement, such as a ‘Personal Order’, instead.

Unlike Property Managers, Welfare Guardians must be an individual person and cannot be a trustee corporation or other organisation. They must also be 20 years or older.

Welfare Guardians will be restricted by the Family Court order in terms of what they can do. Generally, this involves matters relating to where the subject person lives on a regular basis, care and welfare arrangements (such as arranging carers) and the broader management of the person’s health and medical needs.

The law restricts a Welfare Guardian from:

• making decisions for the subject person about getting married or divorced, and adopting in/out any children;
• refusing consent for any lifesaving treatments or procedures;
• consenting to the subject person having electro-convulsive treatment;
• consenting to any surgery or treatment impacting cognitive brain function;
• consenting to engaging in any experimental medical treatments; or
• consenting to receiving assisted dying on the subject person’s behalf.

Different lawyers appointed

When a person is applying to be a Property Manager or Welfare Guardian, the Court will appoint a lawyer to act for the subject person who will try to ascertain the views of the subject person and act as an advocate for them.

This is a separate lawyer to the lawyer acting for those applying to be Property Managers or Welfare Guardians.

Responsibilities and Obligations on Property Managers and Welfare Guardians

Property Managers and Welfare Guardians must promote and protect the subject person’s welfare and best interests. They can also be reasonably expected to consult with the subject person, each other (if both roles are filled by different people), and trusted advisors (such as family, carers, doctors, etc.).  In the case above, the brother who was the Welfare Guardian therefore would still be required to consult with his brother as one of the subject person’s Property Managers.

They will also be subject to any limits set by the Judge and further reporting requirements.

Property Managers must report in writing to the Family Court, with the first report due three months from their date of appointment, and then annual reports thereafter. These reports are sent to the Family Court and reviewed by the Public Trust.

Property Managers are usually appointed for an initial period of 3 years, after which the Family Court may review or re-appoint them as necessary.

It is important to understand your obligations if you are applying to be a Property Manager or Welfare Guardian.  A lawyer experienced in this area will be able to assist you with the process and advise on your obligations.