Disabled people need to have opportunities to exercise their rights when it comes to making decisions about their property and personal welfare just like anyone else. They also need to be protected from people who may try to take advantage of them because they are disabled.
The Protection of Personal and Property Rights Act – The PPPR Act – is Aotearoa New Zealand’s central piece of legislation to help people when they have (1) lost the capacity to make or understand decisions about their own personal care and welfare or property and (2) when they are no longer able to tell other people what they have decided. The PPPR Act gives authority to the Family Court to appoint people to promote and protect personal and property rights if a person is proved to be incapable of making decisions for him or her self. The Enduring Power of Attorney (EPA) provisions of the PPPR Act allow people to decide in advance who they would like to make decisions for them. Even if families of people with disabilities choose not to utilize this legislation they need to have an awareness of it.
Under this legislation there is a legal “capacity” threshold to meet. The threshold means that people need to have some capacity to understand their decisions and what it means to be giving Power of Attorney. Not all disabled people may be able to utilize this legislation to appoint a decision maker.
Enduring Power of Attorney (EPA), Welfare Guardian & Property Manager/Administrator
An EPA is a legal document. EPA’s are prepared and witnessed by a lawyer and they set out who can take care of your personal or financial matters if you can’t. You need to have “capacity” to enter into these arrangements. The person that is appointed to take care of matters on your behalf is called your attorney. You as the applicant are referred to as the donor. Donors often choose attorney’s who are family members or trusted friends. Having an EPA provides peace of mind as choices have been made ahead of time about who can be trusted to make decisions. All adults regardless of age are encouraged to create an EPA.
To become a Welfare Guardian or Property Manager/Administrator an application to the Court is required. A Property Manager/Administrator has the ability to make decisions about your property and money. A Welfare Guardian has the ability to make decisions about your health and welfare. At times more than one attorney can be appointed.
The Welfare Guardian application means that the person (ie the donor) must have a total lack of “capacity” and the legislation defines the threshold and legalities surrounding this. The roles and responsibilities of a Welfare Guardian and/or Property Manager/Administrator can be quite specific or very broad in terms of the decisions that they can make. The attorney (or attorney’s) primary responsibility is to act in the donor’s best interests. The attorney must involve the donor in the decision making process as much as possible. There is a built in review cycle by the Court to make sure the appointees are carrying out their role appropriately. This review cycle can act as a check and balance and provide some form of safeguarding of the donor.
There are differing views about how consistent the PPPR Act is with the United Nations Convention on the Rights of Person with Disabilities. In particular the idea that ‘supported decision-making’ is the right way for people with disabilities and how consistent or otherwise this is with the legislation’s capacity requirements.
It is important to get sound legal advice from someone who has experience with disabled people, and understands disabled peoples rights.
Jensen, N. Guardianship: Making decisions in adulthood. CHAT 21, Issue 74, Winter 2018.