Transcript you
When you can’t manage your own affairs
The Protection of Personal and Property Rights Act 1988
Billie
• Billie, 81, lives with her husband Rawiri. • Two years ago Billie began having short-term memory losses. In the last six months her condition has developed into advanced dementia – sometimes she thinks she is back in earlier stages of her life, when she and Rawiri were raising their three sons.
• Unable to care for Billie on their own anymore, Rawiri and his sons are making plans to have Billie enter residential care in a rest home. • Billie’s family and her GP all agree that Billie has become incapable of making and understanding decisions for herself. •
Who has the legal right to make decisions on Billie’s behalf?
What we’ll cover today:
The Protection of Personal Property Rights Act 1. Enduring Powers of Attorney (EPAs) – Court orders – personal and property – Government Review of the legislation 2. The Crimes Act – duty of care; abuse 3. Some tips
The “3PR” Act
The Protection of Personal and Property Rights Act 1988
“
An Act to
provide
for the
protection
and
promotion
of the
personal
and
property
rights of
persons
who are not fully able to manage their own affairs
”
What is “capacity”?
You lose your “capacity” if – • you can no longer make your own decisions and understand their consequences, or • you can no longer communicate your decisions to other people
How does the 3PR Act help?
• Lets you plan ahead by making an “ enduring power of attorney” (EPA) • Allows the Family Court to make orders or appoint decision-makers for you, if no EPA
What is an enduring power of attorney?
• A legal document saying who you’d like to make decisions for you • You can only make an EPA while you still have capacity • EPA usually only takes effect if you lose your capacity
EPAs: Who’s who?
The “donor”
• That’s you, the person who gives the enduring power of attorney
The “attorney”
• That’s the person you give the power to
Two kinds of EPA
EPA for property
• Decisions about your money and property
(like your house, car and bank accounts)
• You can decide when it takes effect
EPA for personal care and welfare
• Decisions about your personal care
(like where you live and how you’ll be cared for)
• Can take effect only if you lose capacity
How to make an EPA
Research and discuss with family and friends Seek legal advice A special form
• Signed by you, the attorney and witnesses • Your witness must be lawyer, legal exec, or trustee corporation officer
Your witness must
• be independent of the attorney • explain effect of EPA to you, and • sign a certificate
Restrictions on your attorney’s powers
• No important decisions without medical certificate • Must always act in your best interests • Must consult with you and encourage you to act on your own behalf • Must consult with and give information to people you’ve named • Must keep records of all financial transactions
Optional provisions for your EPA
• People your attorney must consult with • People your attorney must give information to • Who will assess your mental capacity • Whether to allow property attorney to benefit him / herself • Appointing a successor attorney(or two) • Allowing property attorney to make will if Family Court agrees
Using an EPA
• If someone says they are the attorney: –
Ask to see the EPA
–
Ask to see the medical certificate or
–
Family Court order Get legal advice if you’re unsure
• If you are worried about an attorney’s decisions, the Family Court can get involved
Intervention by Family Court
Family Court can be asked to:
• decide whether you’ve lost mental capacity • decide the validity and effect of your EPA • review a decision made by your attorney • give directions to your attorney • cancel your attorney’s appointment
Who can ask the Court to intervene?
• You, the donor • Another of your attorneys • A relative • A doctor • A social worker • A trustee corporation • Your welfare guardian • The manager of your hospital, rest home or other institution • An elder abuse and neglect prevention service
(eg, Age Concern)
• Anyone with the Court’s permission
Suspension of EPA
• Donor can suspend attorney’s power after recovering mental capacity • This doesn’t revoke the EPA • Attorney can’t then act under EPA without a new medical certificate
When and how does an EPA end?
• If you, the donor, die • If you the donor revoke the EPA while mentally capable • If the attorney
–
• dies • loses mentally capacity, or • becomes bankrupt • If the attorney disclaims the role • If the Family Court cancels the attorney’s appointment
Government review of EPA law
Government is seeking feedback on EPAs Current law working well Any problems Suggestions for improvements Surveys on line: DUE end of June 2013 http://www.msd.govt.nz/about-msd-and-our-work/whats happening/2013/enduring-powers-of-attorney-review.html
Orders under the 3PR Act
Personal care and welfare
Family Court can – • make specific “personal orders” • appoint a welfare guardian for you
Property
Family Court can – • make “personal orders” for small amounts • appoint a property manager for you
“Personal orders” (specific orders)
• Not merely because you’re making unwise decisions • Can include treatment orders • Only certain people can ask for an order to be made • Person who the order is about can challenge the request for an order
Who can apply for a personal order?
• Relatives, such as spouse / partner, or children or parents • a doctor • a social worker • the person in charge of any hospital or home that you’re in • you yourself
Challenging a personal order
• You’ll usually get a copy of the application • You can attend the Court hearing, and bring witnesses • You can have a lawyer represent you • Legal aid is available if you can’t afford one • Court will appoint and pay for a lawyer if you don’t have one
Welfare guardians
• A person appointed to make decisions about your personal care and welfare • Must act in your best interests and consult you • Can make decisions including treatment decisions • But cannot make certain decisions (e.g. adoption, ECT, medical trials, refusing treatment) • Can have their decisions challenged in Court
Property managers
• Can rent your house, run your business, pay your bills … • Can be appointed by a Family Court “Property Order”
AND NOTE
• You can choose to have a Trustee Corporation manage your property at your request • It costs. Possibly a lot.
How you can challenge or have a say on the Court’s decision
• Go to the hearing to oppose a property manager being appointed for you • Tell the Court who you’d like it to appoint • Ask the Court to review an appointment after it’s made • Ask the Court to review particular decisions your property manager has made
Crimes Act: Elder abuse
Crimes Act 1961 – s151: added “duty to protect” – s195: now includes “vulnerable adult” – s195A: new offence “failing to protect” – Key definition “vulnerable adult”
Crimes Act 1961 Who may have a legal duty to protect a vulnerable adult?
Anyone who has ‘actual care and charge’ of a vulnerable adult.
Crimes Act 1961 Do you have to report abuse?
How do you report abuse?
A few Tips
1. Review your personal situation every few years and make changes to EPA if necessary 2. Superannuation - make sure you apply before you turn 65 3. Retirement villages - Get advice before you sign - Code of Practice is legally binding and contains complaints process