How to obtain a personal or property order for someone who is mentally incapable

Introduction

If you are concerned that someone you know is no longer able to make decisions about his or her personal care or property interests, you may apply to the Family Court for a personal or property order under the PROTECTION OF PERSONAL AND PROPERTY RIGHTS ACT 1988. The people who commonly apply for an order are the person himself or herself, a relative, a social worker or a medical practitioner.

The court treats personal care and welfare issues separate from property matters. Accordingly, it may make two kinds of orders: personal orders and property orders.

The Act encourages the idea of self-reliance and the court has adopted a policy in which it imposes the less restrictive or interfering order.

In making a decision the court may request medical, psychiatric or psychological reports on the person concerned to be presented.

Who are able to have orders made for them?

People who are able to have orders made for them include people suffering from senility or dementia, the comatose, the mentally ill, the intellectually handicapped, and people affected by drug or alcohol dependency.

The Act's scheme does not apply to people who have already provided, through an enduring power of attorney, for someone to handle their affairs should they become mentally incapable (see How to give a power of attorney).

How is an application made?

The application must be filed at the Family Court. Copies of the application form are available from the Family Court.

There is no filing fee.

When can a personal order be made?

A personal order may be made if the person either:

  • lacks, partly or fully, the capacity to understand the nature of decisions about his or her own personal care and welfare, and the capacity to foresee the consequences of those decisions, or
  • has these capacities, but is completely unable to communicate decisions about his or her personal care and welfare

What kinds of personal orders can be made?

The court may grant a variety of personal orders, including:

  • that the person be provided with living arrangements of a specified kind
  • that the person be provided with medical advice or treatment
  • that the person be provided with specific educational, rehabilitative, therapeutic or other services
  • that a welfare guardian be appointed for the person, if he or she is totally unable to communicate decisions or understand decisions about his or her personal care and welfare (see Howto: welfare guardians)

Property orders

The court may make a property order appointing a manager for the person's property if the court believes that the person either:

  • lacks the capacity to understand the nature and foresee the consequences of his or her decisions relating to property, or
  • has this capacity but is unable to communicate his or her decisions

The powers and duties of the manager are conferred by the court and are not limited by the value of the property.

If the property involved is not large (that is, no single item is worth more than $2,000 or the income or benefit is less than $20,000 a year) the court can make a personal order appointing someone to administer the person's property, instead of making a full "property order".

Safeguards for the person who is the subject of the application

The Act contains a number of legal and procedural safeguards to ensure that the court intervenes only after proper processes have been followed:

  • The person subject to the application must have legal representation.
  • Anybody who may assist the court in the matter is given notice of the hearings.
  • A process of automatic reviews is set up.

Is there a right of appeal from the court's decision?

Yes. If the court makes or refuses to make the order, or otherwise makes a final decision about the application, any party to the proceedings or the person about whom the application was made may appeal the court's decision to the High Court.

You have 20 working days after the decision is made to bring your appeal.

Cautionary notes
  • While it is not necessary to obtain the services of a lawyer in order to apply for a personal or property order, it is highly advisable that you do so, as often applications are rejected because they do not contain all the necessary information.
  • If you wish to appeal the court's decision to the High Court, you will almost certainly need to hire a lawyer to do so.


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