Many people have heard of Enduring Powers of Attorney. For those who haven’t, these are legal documents you put in place so if at some point you become incapable of making decisions regarding your personal welfare and property, the person or persons you have appointed makes those decisions for you. When you put Enduring Powers of Attorney in place you need to have what is called “capacity,” which is the ability to make informed decisions about your personal welfare and property and to understand the consequences of those decisions.
But what happens if you have failed to put Enduring Powers of Attorney in place and you lose capacity? At that point you are incapable of making decisions about your personal welfare and property, so who does it for you, and what legal right do they have to make those decisions?
The Protection of Personal and Property Right Act 1988 (“PPPR Act”) deals with this situation by authorising the Family Court to appoint a Property Manager and or Welfare Guardian. If you lose capacity, someone (often a family member) will have to apply to the Court to be appointed Property Manager and/or Welfare Guardian. These roles are very similar to being an Attorney for Personal Care and Welfare, or as Attorney for Property matters under an Enduring Power of Attorney.
The fact that capacity has been lost has to be shown through medical reports. Once the applications are filed in Court, the person who has lost capacity (“the Subject Person”) will have a lawyer appointed to represent their best interests, which will include ascertaining whether the person or people applying to be the Welfare Guardian and/or Property Manager are the right people for the job. Once it is ascertained that it is in the best interests for a Welfare Guardian and/or Property Manager to be appointed for the Subject Person, the Court will make the Orders. The person or people appointed by the Court are now responsible for the decisions regarding the personal care, welfare and property of the “subject person.”
The Welfare Guardian and/or Property Manager has to act in the best interest of the subject person. They cannot use the role to furnish their own nest as it were. They are required to report to the Court yearly, and then reapply regularly to ensure they are acting in the best interests of the person. The process of applying for a manager to be appointed, the filing of an annual report, and the regular reviews of the appointments by the Court are expenses which can be avoided by appointment of an Enduring Power of Attorney.
Applications under the PPPR Act are made not just for elderly people suffering from dementia who have not put in place a Power of Attorney. Other such situations where this application would be appropriate would be upon the 18th birthday of a person who suffers from disabilities that impact on their capacity to make appropriate decisions about their care or wellbeing, or a person who has suffered a medical incident or accident that robs them of their capacity. In these situations it is likely that, first, the person never had the capacity to put in place Enduring Powers of Attorney, and, in the second, just never thought it was necessary or was unaware that an Enduring Power of Attorney could be signed.
Ideally, applications for a Welfare Guardian and/or Property Manager would not be necessary, as an Enduring Power of Attorney would be in place. However, it’s not an ideal world and events happen that mean that you or a member of your family may require Orders under the PPPR Act. So if you or a family member find yourself in this situation, please talk to us regarding applications under the PPPR Act. We will attempt to make this stressful time as straightforward as possible.