Everyone should have Enduring Powers of Attorney (“EPA’s”), so that if they are unable to make decisions or act for themselves, they have given someone else the ability to do so for them.  Sometimes however it is either too late for an EPA to be signed, or else someone has never had sufficient capacity to sign one, perhaps due to an intellectual disability, or because of brain injuries that occurred before the person was old enough to sign EPA’s.  So what happens then?

Under the Protection of Personal and Property Rights Act the Family Court has the power to appoint someone to make decisions for the person who is unable to do so themselves (called the “Subject Person” by the Court), similar to an Attorney appointed under an EPA. 

A Welfare Guardian can be appointed to make welfare decisions, and/or a Property Manager or Property Administrator can be appointed in respect of the person’s property.  The requirements are a lot more rigorous for the Court to appoint someone, and are reviewed by the Court, usually every three years, to make sure they are still appropriate.

First of all there must be medical evidence showing that the Subject Person totally lacks the capacity to make or communicate decisions in respect of their care and welfare (if a Welfare Guardian is required), and/or they partially lack the competence or ability to communicate decisions in respect of their property (if a Property Manager or Administrator is necessary). 

Once there is medical evidence showing that the Subject Person needs help with making decisions it is important to identify who should be making those decisions.

 When it comes to welfare, generally only one person can be appointed.  For property it is possible to appoint more than one if that is appropriate. 

Ideally the person or people chosen will know the Subject Person and what sort of decisions they would likely make.  They have to be trustworthy and able to make decision in the Subject Person’s best interests, without giving thought to their own or anyone else’s interests.

Once it has been decided who should be appointed, an application needs to be made to the Family Court, setting out why appointments are necessary; who is being proposed and why; whether the Subject Person should be made aware of and/or participate in the proceedings; whether there are other interested parties who should be served and whether they have consented to the proposed appointments. 

For property the application will also set out what property the Subject Person has, and for both types of orders, what powers the person appointed will need to have.

The first thing the Court will do when an application is made under the Act is to appoint a lawyer for the Subject Person.  This lawyer represents the Subject Person’s interests and helps the Court by reporting on whether the orders are necessary and whether the person or people who are proposed are appropriate. 

Often once the Lawyer for the Subject Person has filed their report a Judge is able to make orders without anyone needing to attend Court in person. 

If there is any dispute about whether the orders are necessary or who should be appointed a conference will usually be held in Court before a Judge, who will try and assist the parties to come to an agreement.

If that is unsuccessful, it may become necessary to have a hearing in front of a Judge, who will then make a decision as to whether orders should be made and what they should say.  The Court must look for the least restrictive outcome possible, given the level of the Subject Person’s incapacity.

Bringing proceedings under the Act can sometimes be complicated, time consuming and expensive.  That is why it is always better to have Enduring Powers of Attorney signed where possible.

David Tyree
Associate Solicitor
Wellington