When you can’t manage your own affairsThe 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 EPAEPA 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 onthe 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 Tips1. Review your personal situation every few years and make changes to EPA if necessary2. Superannuation-make sure you apply before you turn 653. Retirement villages -Get advice before you sign-Code of Practice is legally binding and contains complaints process

QUESTIONS?

Come and chat with me