When you can’t manage your own affairs

The Protection of Personal and Property Rights Act 1988

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” • Allows Family Court to make orders or appoint decision-makers for you, if no EPA

Enduring power of attorney

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 • A special form • Signed by you, the attorney and witnesses • Your witness must be lawyer, legal exec, or trustee corp officer • Your witness must – –

be independent of attorney

– –

explain effect of EPA to you, and sign 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 info to people you’ve named • Must keep records of all financial transactions

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: When they can be made • Family Court can make personal order if –

you’re unable, wholly or partly, to make decisions for yourself and understand their consequences, or

–

you’re completely unable to communicate your decisions to others

• Not merely because you’re making unwise decisions

Intervening as little as possible

Two key goals

• To intervene as little as possible in your life, taking into account the extent of your incapacity • To enable or encourage you to use and develop whatever capacity you do have, as much as possible

Types of personal orders

The Court can, for example –

• make an order for you to live in a particular place • order you to have particular treatment or therapy • order you to remain in New Zealand • appoint someone to manage small amounts of your property

Who can apply for a personal order?

People who can apply include –

• 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

Can the Court make a personal order for Ben?

Ben experiences mental illness. He’s not working at the moment and is on the unemployment benefit. At a time when he’s unwell he borrows $5,000 from a small finance company and makes plans to travel overseas. Ben’s sister Jane applies for a personal order to stop him leaving New Zealand. She’s worried that he’s borrowing money with no hope of paying it back. She’s also worried he’ll get further into debt if he goes overseas.

3PR Act and Mental Health Act

The 3PR Act

• Psychiatric treatment in community • Psychiatric treatment as inpatient • Treatment for physical condition

Mental Health Act

• Treatment as inpatient or in community • Treatment for physical condition

Yes No Yes Yes No

Shona Shona is receiving compulsory treatment for a mental illness as an inpatient.

She’s recently been diagnosed with breast cancer. Shona’s doctor says she urgently needs to have surgery to remove the cancer. Shona refuses to have this surgery.

Welfare guardians

What are they?

• A person appointed to make decisions about your personal care and welfare

When can one be appointed?

• Only if –

you’re completely unable to make and understand decisions, and

–

it’s the only way to make sure appropriate decisions are made for you

Welfare guardians must … • always act in your best interests • encourage you to make decisions and act for yourself as much as possible • consult with you about what decisions to make

What powers do welfare guardians have?

Wide powers to make decisions for you and put them into effect Includes decisions about –

• where you live • how you’ll be cared for, and by whom • what medical or psychiatric treatment you’ll receive

A welfare guardian cannot … • make decisions about you getting married or divorced • make decisions about your children being adopted • agree to electro-convulsive treatment (ECT) • agree to brain surgery • refuse you necessary medical treatment • allow you to be part of medical experiments

How you can challenge or influence the Court’s decision

You can –

• go to the hearing to oppose a welfare guardian 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 welfare guardian has made

Property orders and property managers

Property orders and property managers: What are they?

“Property order”

• A Family Court order appointing a property manager for you

“Property manager”

• A person appointed to make decisions about some or all of your money and property

Property managers: When can they be appointed?

• Only if you’re unable, completely or partly, to manage your money and property yourself • Not merely because you’re making unwise financial decisions

Intervening as little as possible

Two key goals

• To intervene in your affairs as little as possible, taking into account the extent of your incapacity • To enable or encourage you to manage your own property, as much as possible

What can my property manager do?

For example –

• managing your bank accounts • paying your bills • doing your tax returns • buying / selling your property (up to $120,000) • running your business • finding tenants to rent your house

Property managers must … • always act in your best interests • encourage you to manage your property yourself as much as possible • consult with you, your welfare guardian and your family or close friends about what decisions to make • file a financial statement with the Court each year

How you can challenge or influence the Court’s decision

You can –

• 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

Using a trustee corporation • You can ask trustee corporation to manage your property for you.

• These include, for example –

Public Trust

– –

the Māori Trustee NZ Guardian Trust

• Others can apply for trustee corporation to manage your property, up to $100,000