Welfare guardians are appointed by the Family Court for people who are completely incapable of handling their own personal affairs. It is seen as a measure of last resort.
Appointments are made under the PROTECTION OF PERSONAL AND PROPERTY RIGHTS ACT 1993, which sets out a strict procedure for making appointments. The appointment of a welfare guardian is one of the types of "personal order" that can be made under the Act (see How to obtain a personal or property order for someone who is mentally incapable).
Sometimes people provide in advance for the possibility that they will become mentally incapable, by giving another person an "enduring power of attorney" to deal with their personal affairs (see How to give a power of attorney). A welfare guardian is appointed if no such power of attorney has been given.
Applications are made to the Family Court. The court will provide you with copies of the application forms. You can also download them from the Family Court website at www.courts.govt.nz (under Courts/Family Court/Forms).
Before the court will appoint a welfare guardian for a person, it must be satisfied:
A welfare guardian must:
The court must be satisfied that the proposed welfare guardian:
The court will also consider the wishes of the person for whom a guardian is to be appointed, but the person's preference as to who should be appointed will not be decisive.
The court cannot appoint a person to be a welfare guardian if he or she does not consent to being appointed.
(There is a set form to show that the person consents to being a welfare guardian. You can obtain a copy of this form, "Statement of consent to appointment as welfare guardian", from the Family Court, or download it from their website at www.courts.govt.nz (under Courts/Family Court/Forms).)
The areas in which a guardian has authority to make decisions will be specified in the court order. In those areas the welfare guardian has all powers that are reasonably necessary to enable him or her to make and implement decisions for the person concerned. Your decisions as guardian are legally effective as long as they are within your authority.
A welfare guardian is appointed to make up for the person's shortfall in capacity only, and not to take over his or her life. Therefore the guardian is required:
Yes, a welfare guardian does not have the power to:
When the court appoints a welfare guardian it must specify a date for the appointment to be reviewed, which must be not more than three years from the date of the appointment.
In addition, the person who is mentally incapable, or the guardian, or anyone else who has the court's permission can apply to the court at any time for the appointment to be reviewed.
Yes, the person for whom the guardian is acting or anyone else who has the court's permission can apply to the court for it to review any decision made by the welfare guardian.
Welfare guardians are not paid, but their reasonable expenses are met from the property of the person for whom they are acting. If the person's property won't cover these expenses, the court can order the guardian's expenses to be met out of public funds.
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