Who needs a Welfare Guardian?
Sue Sue Gates
Senor Researcher
Donald Beasley Institute
P O Box 6189
Dunedin
PPPR Act 1988
 It represented a major reform of the law relating to persons who are
incapacitated and their decision-making ability is affected.
 It assists people who do not have the capacity to make or understand
decisions about their own personal care & welfare &/or their property,
or who are no longer able to tell people what they have decided.
 Principles of the Act – presumption of competence; least restrictive
intervention; encourages self reliance & normalization; community
integration; best interests.
 The Act operates on the assumption that any intervention in a person’s
life is a denial of their civil rights…
 Thus, the Act has a number of legal & procedural safeguards – to ensure
that intervention only occurs after proper processes have been duly
followed.
 There are no requirements to consider the wishes of the family.
 There are no references to cultural diversity.
The Protection of Personal & Property Rights
Act 1988 (3PR Act)
This Act can apply to all of us, for example:
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People who are mentally unwell
People with an intellectual disability
People who have severe head injuries
People in comas
People affected by drug and alcohol dependency
Elderly people who have become mentally incapacitated
If we confer an EPA on someone
What are the options for decision making?
 Subject person makes own decisions when given full
information in an understandable form
 In an emergency others can make a decision for the subject
person, as it is for any of us…
 The Informed Consent procedures in the H &D Code, of
Rights - right 7 (4)
 If subject person unable to consent, and does not have a
welfare guardian, then an interim personal order from the
Family Court can be sought (3P&R Act 1988)
 If there is a Welfare Guardian, they may make the decision,
but only after consultation & if it is within their power.
 Enduring power of attorney can make a decision for the
subject person
The Protection of Personal & Property Rights
Act 1988 (3PR Act)
This Act is administered by the Family Court
• It does not refer to specific categories of disability or types
of people, but requires a *practical/functional judgment of
the degree of capacity to make decisions and communicate.
• The Act only allows a limited guardianship with more strict
criteria required for an order appointing a Welfare Guardian.
• The appointment of a Welfare Guardian is clearly intended
by this Act to be a ‘last resort’ action.
Important features of the 3P&R Act 1988
 You have to accept that someone is competent until proven
otherwise;
 Acknowledge the right of all persons to autonomy or selfdetermination;
 The ‘least restrictive’ intervention;
 Encourage a person’s independence and integration into the
community;
 A functional approach/assessment of capacity or
competence;
 The promotion and protection of the person’s welfare and
the ‘best interests’ of the person you are acting for;
 A balance between sufficient legal safeguards and relaxed
procedures.
Capacity - Competency
Capacity or competency is the term that refers
to the ability to make rational and well
informed decisions by a person on their
treatment, management and any other life
decisions.
Capacity
It refers to the person’s ability to communicate
choices, their understanding of relevant
information, their appreciation of the situation & its
consequences & their manipulation of the
information (their ability to follow a logical
consequence of thought in order to make a
decision).
(Judge Boshier In the matter of FT, 1995)
The Protection of Personal & Property Rights
Act 1988 (3PRAct)
Lack of capacity may be total or partial. If a person is able to
appreciate certain aspects of their personal life, but not
others, there may be an application to the Family Court to
make specific personal orders, in that part of the subject
person’s life they have limited decision-making capacity.
This can include where they may live and who will look after
them etc.
Section 6 of the 3PR Act 1988 – criteria for personal
orders other than an order for Welfare Guardianship
6(1)(a)…Lacks wholly or partly the capacity to understand the
nature, and to foresee the consequences, of decisions in
respect of matters relating to his/her personal care and
welfare; or
6(1)(b)…Has the capacity to understand the nature, & to
foresee the consequences of decisions in respect of matters
relating to his/her personal care & welfare but wholly lacks
the capacity to communicate decisions in respect of such
matters
Personal Orders
• The Court can make a Personal Order if a person is or becomes
incapacitated & unable to make decisions;
• A Personal Order is an instruction given by a Judge requiring an
action to be taken to look after a specific part of an incapacitated
person’s care & welfare;
• The person must lack wholly or partly the capacity to understand
the nature of consequences of decisions that relate to their
personal care & welfare; or
• They must lack the capacity to communicate decisions about their
personal care & welfare; (Section 6, 3PRAct 1988)
• Consult a lawyer for advice & assistance before making an
application for a Personal Order.
Personal Orders
Personal Orders can require:
 that a person’s parent(s) make arrangements for the
person’s care after the parent’s death;
 an order that those arrangements set out above be
observed or varied after the parents death;
 That a person enter, attend or leave a specific institution
(not a psychiatric hospital) - known as a placement order;
 …be provided with particular living arrangements specified
in the order;
 …be provided with specified medical advice or treatment;
Personal Orders
• …a person is appointed as ‘next friend’ or ‘guardian ad litem’
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for the person in regard to District Court proceedings;
…be provided with specified educational, rehabilitative,
therapeutic or other services specified in the order;
…the person may not leave NZ except as the Court allows;
…a named person administer a specified item of property;
…a named person be appointed as a Welfare Guardian for
the subject person
Section 13, 3PRAct 1988
This Act does encourage solutions to problems to be
sought outside the law.
S13 states that the Court may make
recommendations relating to a course of action that
it considers should be followed by the parties in
respect of whom the application is made…instead
of an order.
Welfare Guardians
The Family Court can appoint a welfare guardian for a person
only if the Court is satisfied that –
 The person is completely unable to make or communicate
decisions about their personal care and welfare;
 Appointing a welfare guardian is the only satisfactory way to
make sure appropriate decisions are made for the person.
Section 12 3PRAct 1988
This is an appointment of “last resort” – if there is a short
term problem the Court will prefer to make other personal
orders to deal with the problem rather than appointing a
welfare guardian
Section 12 of the 3PRAct 1988
Application for Welfare Guardianship – very stringent
jurisdictional criteria
12 (2) (a) that the person in respect of whom the application is
made wholly lacks the capacity to make or to communicate
decisions relating to any particular aspect or particular
aspects of personal care and welfare of that person; and
(b) that the appointment of a welfare guardian is the
only satisfactory way to ensure that appropriate decisions
are made relating to that particular aspect or those
particular aspects of the personal care and welfare of that
person
Welfare guardians
A family or anyone else cannot decide they will be the Welfare
Guardian for the subject person. The Family Court makes the
decision whether someone should have a welfare guardian….the
Court decides who has capacity
There are clear guidelines for who should be appointed & how
they should behave.
If a subject person acts in an unconventional or eccentric way, or
makes decisions that the average person may not make, the
Family Court does not have the power to make an order.
Welfare guardians
 Even though they are substitute decision-makers, welfare
guardians must consult with the subject person, their family,
friends, health professionals etc, before any decision is made
 Welfare guardian orders last for 3 years – they are reviewed every
3 years or sooner depending on the circumstances.
 Welfare guardians do not take the place of parents.
 A parent can only become a welfare guardian if the Family Court
thinks they are the best person to take on that role
Welfare Guardians
what do they do?
They have the power to make decisions for the subject person – but these
decisions can only be about issues the Court has specified.
These decisions must:
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Promote & protect the subject person’s welfare & best interests
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Encourage the subject person to use what capacity they have
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Encourage the subject person to act on their own behalf wherever possible
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Help the subject person to be a part of the community as much as possible
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Consult with the subject person and others who can give competent advice
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Consult with the subject person’s property manager, if the Court has appointed
one
The Family Court can give guidance, in carrying out the role, to new welfare
guardians
Some issues?
• Should all people with an intellectual disability have a welfare
guardian?
• Should people who are vulnerable and have high and complex
needs, no voice, and/or ability to participate in decisions about
their lives have welfare guardians?
• Should parents be welfare guardians?
• Can staff make decisions for people with intellectual disabilities?
• Can a subject person refuse to have a welfare guardian?
• Does the Family Court know enough about people with an
intellectual disability?
• Do lawyers know enough about people with an intellectual
disability?