What happens when you do not have an Enduring Power of Attorney?
What happens if you are assessed by a medical professional as not having capacity to make your own financial or personal care and welfare decisions? In these circumstances you will no longer have the legal capacity to consent to treatments on your own behalf, or deal with your own property and finances, so who will do this for you?
If you had completed Enduring Powers of Attorney in place for property and personal care and welfare before you “lost” capacity, then the person who you appointed in these documents as your Attorney will essentially step into your shoes and make decisions on your behalf. However, if you do not have an Enduring Power of Attorney in place, then the process is not as simple and instead someone will need to apply to the Family Court for authority to take on this role.
Applications may be made by your relatives or friends or in circumstances where there aren’t any people who are willing and able to act, a Trustee Corporation such as the Public Trust may apply to manage your financial property.
What are the Applications?
Property Manager
An application that can be made is to be appointed as your Property Manager. A Property Manager will be able to manage and make decisions regarding your property, finances and other assets. Generally, functions of a Property Manager may include applying to Ministry of Social Development for a residential care subsidy on your behalf, paying your bills and rest home fees or dealing with your home in terms of selling, or tenanting it.
Welfare Guardian
A person can also apply to be appointed as your welfare guardian. This means they will be responsible for making personal care and welfare decisions for you, including decisions related to your accommodation, health care and other personal matters.
What is the Process?
The application will need to be made to the Family Court which is usually the court closest to where you live. The person applying will need to provide the court with evidence that a medical practitioner has assessed you as no longer having capacity to make decisions on your own behalf. This is usually a report from your doctor.
Once an application has been filed, you will be appointed your own independent lawyer who will represent your interests in the court proceedings. You lawyer will usually make their own inquiries and prepare a report with their recommendations and commenting on the suitability of the applicant to be appointed as your Property Manager and/or Welfare Guardian.
Your family members may oppose the application if they don’t agree with the appointment of the manager which can cause delays in Orders being made. The risk of this may be greater if there are disagreements among family members or poor family dynamics.
Once the Orders are made
If Orders are made, then there are certain legal requirements required of a Property Manager who will need to document their management of your financial affairs, including your income and expenditure. Your Property Manager will need to submit this information as a report to the Family Court following their appointment, and thereafter on an annual basis, which will then be examined by Public Trust.
Unlike an Enduring Power of Attorney (which is valid until your Attorney’s appointment is revoked), a Property Manager and Welfare Guardian will need to re-apply to the Family Court every 3 to 5 years to renew the Court Orders and continue their role which can be a costly exercise.
It is important to remember you cannot enter an Enduring Power of Attorney once you have ‘lost’ capacity. To avoid future uncertainty, delay, and expense we recommend you ensure you have completed Enduring Powers of Attorney appointing your chosen representative while you have the capacity to do so.