Partner at Cavell Leitch Law
Partner at Clark Boyce Lawyers
How to: Welfare guardians
What are welfare guardians?
Welfare guardians are appointed by the Family Court for people who are completely incapable of handling their own personal affairs. It is seen as a measure of last resort.
Appointments are made under the PROTECTION OF PERSONAL AND PROPERTY RIGHTS ACT 1993, which sets out a strict procedure for making appointments. The appointment of a welfare guardian is one of the types of "personal order" that can be made under the Act (see How to obtain a personal or property order for someone who is mentally incapable).
Sometimes people provide in advance for the possibility that they will become mentally incapable, by giving another person an "enduring power of attorney" to deal with their personal affairs (see How to give a power of attorney). A welfare guardian is appointed if no such power of attorney has been given.
How do I apply for a court order appointing a welfare guardian?
Applications are made to the Family Court. The court will provide you with copies of the application forms. You can also download them from the Family Court website at www.courts.govt.nz (under Courts/Family Court/Forms).
When will the court appoint a welfare guardian?
Before the court will appoint a welfare guardian for a person, it must be satisfied:
- that the person completely lacks the capacity to make or to communicate decisions relating to his or her personal care and welfare, and
- that the appointment of a welfare guardian is the only satisfactory way to ensure that appropriate decisions are made
How does the court decide who to appoint?
A welfare guardian must:
- be an adult (20 or over), and
- an individual (a trustee company cannot be appointed)
The court must be satisfied that the proposed welfare guardian:
- is capable of carrying out the duties of guardian in a satisfactory manner, taking into account the needs of the person for whom the guardian is to be appointed and the relationship between that person and the proposed appointee, and
- will act in that person's best interests
The court will also consider the wishes of the person for whom a guardian is to be appointed, but the person's preference as to who should be appointed will not be decisive.
The court cannot appoint a person to be a welfare guardian if he or she does not consent to being appointed.
(There is a set form to show that the person consents to being a welfare guardian. You can obtain a copy of this form, "Statement of consent to appointment as welfare guardian", from the Family Court, or download it from their website at www.courts.govt.nz (under Courts/Family Court/Forms).)
What are the powers and duties of welfare guardians?
The areas in which a guardian has authority to make decisions will be specified in the court order. In those areas the welfare guardian has all powers that are reasonably necessary to enable him or her to make and implement decisions for the person concerned. Your decisions as guardian are legally effective as long as they are within your authority.
A welfare guardian is appointed to make up for the person's shortfall in capacity only, and not to take over his or her life. Therefore the guardian is required:
- to encourage the person to develop and exercise whatever capacity he or she has to deal with his or her personal affairs, and to encourage the person to act on his or her own behalf as far as possible
- to facilitate the person being integrated into the community
- to consult with the person, so far as this is practicable, and also with other interested people, such as hospital care-givers and any property manager appointed for the person under the Act (for property managers, see How to obtain a personal or property order for someone who is mentally incapable)
Are there any decisions that a welfare guardian cannot make?
Yes, a welfare guardian does not have the power to:
- make any decisions relating to the person entering or dissolving a marriage
- make a decision relating to the adoption of the person's child
- refuse consent to standard medical treatment intended to save the person's life or to prevent serious damage to his or her health
- consent to electro-convulsive treatment
- consent to any brain surgery or treatment
- consent to the person being part of any medical experiment (except one conducted to save the person's life or to prevent serious damage to his or her health)
How long does the appointment last for?
When the court appoints a welfare guardian it must specify a date for the appointment to be reviewed, which must be not more than three years from the date of the appointment.
In addition, the person who is mentally incapable, or the guardian, or anyone else who has the court's permission can apply to the court at any time for the appointment to be reviewed.
Can the welfare guardian's decisions be challenged?
Yes, the person for whom the guardian is acting or anyone else who has the court's permission can apply to the court for it to review any decision made by the welfare guardian.
Are welfare guardians paid?
Welfare guardians are not paid, but their reasonable expenses are met from the property of the person for whom they are acting. If the person's property won't cover these expenses, the court can order the guardian's expenses to be met out of public funds.
- While it is not strictly necessary to obtain the services of a lawyer to apply for the court to appoint a welfare guardian, it is strongly recommended that you do so to ensure that your application includes the necessary information.