A brief guide to the Protection of Personal and Property Rights Act
When a family member loses capacity to make decisions about their needs, there is a common misconception that their next of kin can automatically make those decisions for them and look after their affairs.
Unfortunately, this isn’t the case. Due to privacy reasons, banks, insurance companies, utilities companies, agencies such as IRD and Te Hiranga Tangata (Work and Income), and other institutions may be reluctant to deal with a person’s next of kin. That is, unless there is a specific signed authority, such as an enduring power of attorney (EPA), or a court order in place.
An EPA or a court order under the Protection of Personal and Property Rights Act 1988 (PPPR) are common in certain situations. For example, it is a requirement for the admission process of most (if not all) rest homes.
If there is no EPA in place, then a PPPR application will need to be filed with the court.
The most common orders available to family members under the PPPR are:
- Order for Appointment of Welfare Guardian (which deals with care and welfare)
- Order to Administer or Manage Property (which deals with property and/or income)
The Subject Person
The PPPR provides protection to personal and property rights of people (who are referred as the “subject person”) who are not fully capable of managing their own affairs.
The subject person may include someone who is mentally ill, has dementia, an intellectual disability, or has had a sudden serious accident or health episode, such as a stroke, which affects their mental capacity.
The role of a welfare guardian and property administrator/property manager
The welfare guardian decides where the subject person will live and what standard of medical care, or additional care such as dentistry, they need. This also includes any treatment that is done or care arrangements that are carried out on the person in an emergency.
In terms of property, someone is appointed as a property administrator or property manager, depending on the subject person’s income or the extent of their property interests.
If the subject person’s income or benefit is less than $20,000 a year and they do not have property over $5,000, then a property administrator can be appointed. However, if the value is over these amounts, then someone is required to apply to be appointed as the subject person’s property manager.
Property managers have additional responsibilities to property administrators. They need to file periodic financial statements in court in relation to the subject person’s property.
Under the PPPR, there are other powers given to the property manager such as buying or selling the subject person’s property. However, sometimes the court’s permission is required to exercise these powers.
The welfare guardian and property administrator/manager are not entitled to be paid for their role (unless they are independent PPPR consultants or a court orders otherwise). However, all expenses which they reasonably incur in exercising their roles are usually payable out of the subject person’s fund.
What documents are required?
There are various documents to file in court for these applications, including:
- Application forms regarding the appointment of a property administrator/property manager and/or a welfare guardian
- An affidavit in support, including a report from a medical practitioner
- Information Sheet; and
- Consents from immediate family members of the subject person (for example, the subject person’s wife, partner and adult children)
The court appoints a lawyer for the subject person who will file a report with the court to confirm whether the orders sought can be made, whether they require further information, whether there are interested parties that need to be served copies of the application, or whether the matter will need to be progressed in court.
If an application is opposed by someone, the court will allocate a pre-hearing conference before a judge to identify any issues. However, if the application is not opposed and sufficient information has been filed in court, a decision is usually made by a judge in their chambers without the need to appear in court.
The orders normally expire after three years, unless the court decides that it should continue. If you do not apply for a re-appointment prior to the expiry date, the orders, and the powers you have under the orders, will expire and a fresh application will need to be made.
Haigh Lyon’s family team can assist with PPPR applications, and can provide you with advice regarding your powers as welfare guardian, property manager or property administrator. We can also assist you if you would like to oppose someone’s application for PPPR orders.