By Nan Jensen
The Family Court has the power to appoint a person to make decisions for a person who lacks the capacity to understand the nature and consequences of their decisions and/or the ability to communicate their decisions.
Roles can be allocated for very specific decisions or for a broad range of decisions. The most common roles are Welfare Guardian (to make decisions about the personal care and welfare of another person) and Property Manager/Administrator (to make decisions about the property of another person).
Welfare Guardian and Property Manager
Families of people with disabilities need to be aware of the legislation around this even if they choose not to take advantage of it.
Not all disabled people can have a decision-maker appointed under this legislation – they need to meet the capacity threshold (or rather lack of capacity threshold).
The right to make your own decisions is a core element in the United Nations Convention on the Rights of Persons with Disabilities.
The Convention protects the rights of a person to make their own decisions, and states that ‘supported decision-making’ is the correct way for decisions to be made for people with disabilities who may have capacity issues.
Many disability groups oppose the current legislation as they believe it interferes with that right. Our government has claimed that the current legislation (which ironically is called the Protection of Personal and Property Rights Act) accords with the convention, because of the following provisions:
- The requirement that the court ‘make the least restrictive intervention’ in the person’s life and ‘enable or encourage that person to exercise and develop such capacity as he or she has to the greatest extent possible’ (s. 8)
- The duty of a Welfare Guardian to have as ‘the first and paramount consideration’ ….’the promotion and protection of the welfare and best interests of the person for whom the welfare guardian is acting, while seeking at all times to encourage that person to develop and exercise such capacity as that person has to understand the nature and foresee the consequences of decisions relating to the personal care and welfare of that person, and to communicate such decisions’ (s. 18(3))
In my work as solicitor I advise families about this law and I make applications under the Act, if that is what people want to do and if their family members fit the criteria. I make people aware of their obligations if they do get appointed to a role under the Act.
In an ideal world, we want every person in New Zealand to make their own decisions. Some disability groups seem to encourage families to make financial and life decisions informally with the consent from their family member with a disability and without having to resort to a guardianship arrangement.
In my experience, it is getting harder to navigate the major issues
Informally. New Zealand is becoming more litigious and there are more and more rules and accountabilities in organisations, as is appropriate. The Privacy Act for example, can make it difficult for families to get information or be involved where there is no Court order in place.
Sadly, I run into too many situations where people are abused or neglected, either financially or otherwise, sometimes by their own family members. So in my view, it is appropriate to have a court-appointed, official role that allows scrutiny of how that role is being carried out. Informal arrangements do not allow for this.
Having said that, I do not think the current legislation has enough safeguards – so people may or may not be informed of their obligation to consult with their family member and to consult them and encourage them to make their own decisions – and even if they are, there is no mechanism to check that they are actually doing it.
On the other hand, I do not believe we have enough safeguards for people with disabilties in general, whether they have a decision-maker appointed under this legislation or not.
Some disability activists however, argue for ‘the dignity of risk’ and they want fewer interventions in their lives. I have sympathy for this view – the issue however is that there are many different types of disabilities and some people are more vulnerable than others.
The issue is finding a balance between freedom and protection – because the more freedom, the less protection (this is true about everything in life) and clearly the level of protection needed and wanted will vary from one situation to the other.
I have seen cases where the courts have allowed welfare guardians to treat their person with a disability like a child and prevent them from being independent, but I have also seen this happen in situations where there is no welfare guardian. As mentioned, I have also seen abuse and neglect both with and without a Court appointment.
I am afraid there are many people with disabilities who are being abused or neglected and nobody knows, because they are ‘off the radar’ of any organisations,
including the courts.
New Zealand does not have a Public Guardian (as in Australia), or an organisation along the lines of Age Concern or Oranga Tamariki for people with disabilities. I am sure there are people who know abuse is happening but they don’t know where or how to report it.
In this context the appointment of a Welfare Guardian or other role under the legislation at least provides a regular assessment, as it is reviewed every three years. The review is the time when the court should be checking that the appointee is carrying out their role appropriately.
Reviews normally take place at 3-yearly or 5-yearly intervals but a review can take place at any time, if someone applies to the Court and the Court grants their application for review. If there was a Public Guardian, that office could request a review if an average citizen was unwilling to do so but had a concern.
In my view, there are two options for improvement:
Firstly, we can modify the legislation to ensure that appointees are aware of their responsibilities and to check that they are doing their job. This of course will upset families who have looked after their child for 18 years without any issues. The fact is though that when a person becomes an adult, the law is and should be different, even if the person operates at the level of a child. I believe combining this with the appointment of an Office of the Public Guardian would work well.
A second option, which exists in Canada and is being looked at in Australia and other jurisdictions, is to have a system of registering support people (supported decision-making), so people with a disability still have the legal decision-making power, but they or the court are able to officially appoint someone to support them. This way there is a record of who is appointed and a way to review those appointments if there are issues or concerns. A Public Guardian or other reporting mechanism would be useful here too.
Enduring Powers of Attorney
Enduring Powers of Attorney are documents where you appoint someone to make decisions for you about your personal care and welfare and/or property (there are separate documents for each). You need to have the capacity to make these. These can be helpful for people who can give their own medical consent and make their own personal care and welfare decisions but need help with managing their money, because the Property one can be activated while the person has capacity.
There is currently a government initiative to get more people to do these, particularly older people.
In my practice I have witnessed powers of attorney for people with Down Syndrome and other intellectual disabilities. I do this in cases where I am certain that the person understands enough about the document to satisfy me that they could sign it, but I doubt many other lawyers are willing to do the same. I will often get a letter from their GP before I witness the documents to ensure that they support my view.
Enduring Powers of Attorney are for people who have at least some capacity to understand their decisions, and they need to understand the significance of giving Power of Attorney.
I believe everyone with capacity should have these in place. I had all of my children do them as soon as they turned 18. Anyone can have an accident or a medical event that reduces or removes their capacity.
If you have not done powers of attorney and you do lose capacity (as many people do as they get older), then someone in your family will have to apply to be your welfare guardian and property manager. I am aware that I sound like I am trying to sell my services when I say these things, but in my view these documents are like insurance. You hope you will never need them, but if you don’t do them your family may wish that you had.
Enduring Powers of Attorney are prepared and witnessed by a lawyer. Unlike Welfare Guardianship and Property Management, no Court order is required and there is no expiry period.
Nan Jensen is a consultant with Quinlaw Solicitors