Issues can arise when a person loses capacity and needs assistance in managing their property or making decisions about their care and welfare when they do not have appropriate Enduring Powers of Attorney (EPA). In some cases organisations, including that person’s bank or a rest home, may be reluctant to deal with another family member in the absence of an EPA.
In situations such as this, an application will need to be made under the Protection of Personal and Property Rights Act 1988 (PPPR Act) for the appointment of a property manager, welfare guardian, or both. These roles are designed to ensure that the financial and personal well-being of the person (referred to in the PPPR Act as ‘the Subject Person’) are properly managed and protected when they are not completely capable of doing so themselves. The PPPR Act emphasises the importance of implementing the least restrictive measures and encouraging a Subject Person to exercise as much capacity as much as possible.
The PPPR Act also governs the actions of an Attorney acting under an EPA. Orders may be sought under the PPPR Act where concerns exist about the use of an EPA by an Attorney.
A property manager can be appointed under the PPPR Act when a person wholly or partly lacks the capacity to manage their property affairs. The role of a property manager is to act in the best interests of the person they are representing. Property managers can apply for powers to manage a person’s finances, including bank accounts, investments, and other financial responsibilities.
A welfare guardian can be appointed when a person is unable to make decisions about their personal care and well-being, including living conditions and healthcare. Welfare guardians have the authority to make decisions regarding medical care including treatments on behalf of the person. They can determine where the person should live, whether it be at home with assistance, in a care facility, or with family members. This decision-making process is rooted in the best interests and needs of the individual. Welfare guardians must ensure that the person’s daily needs are met, encompassing aspects such as clothing, hygiene, nutrition, and social activities. They act as advocates to ensure a high quality of life.
An application under the PPPR Act is dealt with in the Family Court. When considering an application, the Judge will assess whether a property manager and/or welfare guardian needs to be appointed. An essential initial step is obtaining a medical report that addresses the Subject Person’s capacity to make decisions for themselves. If the Court deems it necessary, further medical evidence may be requested.
After the application is filed, the Court will appoint a lawyer, known as Counsel for the Subject Person, to act on behalf of the person. This is an important step to ensure that the person’s wishes and best interests are accurately represented during the application process. Counsel for the Subject Person will meet with the person, obtain their views on relevant matters, and report to the Court.
While a Judge will usually decide an application without the need for the parties to appear in Court, if affected parties, such as other family members, do not agree with the orders being sought, then they may oppose the application in which case a hearing may be required to determine the matter.
Where a person has lost capacity for whatever reason, the appointment of property managers and welfare guardians under the PPPR Act is often critical to ensure that their interests and well-being are being looked after. Property managers and welfare guardians serve as safeguards against possible financial exploitation, neglect, and the potential misuse of personal assets.
The need for an application for a property manager and/or welfare guardian can often be avoided with the preparation of EPAs for property and personal care and welfare.
We recognise that navigating decisions around there issues can be stressful. If you require any assistance with an application under the PPPR Act on behalf of a loved one or your own enduring powers of attorney, please contact the team at Harmans.