Who needs a Welfare Guardian?

Sue Sue GatesSenor ResearcherDonald Beasley InstituteP O Box 6189Dunedin

It represented a major reform of the law relating to persons who are incapacitated and their decision-making ability is affected.

It assists people who do not have the capacity to make or understand decisions about their own personal care & welfare &/or their property, or who are no longer able to tell people what they have decided.

Principles of the Act – presumption of competence; least restrictive intervention; encourages self reliance & normalization; community integration; best interests.

The Act operates on the assumption that any intervention in a person’s life is a denial of their civil rights…

Thus, the Act has a number of legal & procedural safeguards – to ensure that intervention only occurs after proper processes have been duly followed.

There are no requirements to consider the wishes of the family. There are no references to cultural diversity.

PPPR Act 1988

This Act can apply to all of us, for example:

• People who are mentally unwell• People with an intellectual disability• People who have severe head injuries• People in comas• People affected by drug and alcohol dependency• Elderly people who have become mentally incapacitated• If we confer an EPA on someone

The Protection of Personal & Property Rights Act 1988 (3PR Act)

Subject person makes own decisions when given full information in an understandable form

In an emergency others can make a decision for the subject person, as it is for any of us…

The Informed Consent procedures in the H &D Code, of Rights - right 7 (4)

If subject person unable to consent, and does not have a welfare guardian, then an interim personal order from the Family Court can be sought (3P&R Act 1988)

If there is a Welfare Guardian, they may make the decision, but only after consultation & if it is within their power.

Enduring power of attorney can make a decision for the subject person

What are the options for decision making?

This Act is administered by the Family Court

• It does not refer to specific categories of disability or types of people, but requires a *practical/functional judgment of the degree of capacity to make decisions and communicate.

• The Act only allows a limited guardianship with more strict criteria required for an order appointing a Welfare Guardian.

• The appointment of a Welfare Guardian is clearly intended by this Act to be a ‘last resort’ action.

The Protection of Personal & Property Rights Act 1988 (3PR Act)

You have to accept that someone is competent until proven otherwise;

Acknowledge the right of all persons to autonomy or self-determination;

The ‘least restrictive’ intervention; Encourage a person’s independence and integration into the

community; A functional approach/assessment of capacity or

competence; The promotion and protection of the person’s welfare and

the ‘best interests’ of the person you are acting for; A balance between sufficient legal safeguards and relaxed

procedures.

Important features of the 3P&R Act 1988

Capacity or competency is the term that refers to the ability to make rational and well informed decisions by a person on their treatment, management and any other life decisions.

Capacity - Competency

It refers to the person’s ability to communicate choices, their understanding of relevant information, their appreciation of the situation & its consequences & their manipulation of the information (their ability to follow a logical consequence of thought in order to make a decision).

(Judge Boshier In the matter of FT, 1995)

Capacity

Lack of capacity may be total or partial. If a person is able to appreciate certain aspects of their personal life, but not others, there may be an application to the Family Court to make specific personal orders, in that part of the subject person’s life they have limited decision-making capacity. This can include where they may live and who will look after them etc.

The Protection of Personal & Property Rights Act 1988 (3PRAct)

6(1)(a)…Lacks wholly or partly the capacity to understand the nature, and to foresee the consequences, of decisions in respect of matters relating to his/her personal care and welfare; or

6(1)(b)…Has the capacity to understand the nature, & to foresee the consequences of decisions in respect of matters relating to his/her personal care & welfare but wholly lacks the capacity to communicate decisions in respect of such matters

Section 6 of the 3PR Act 1988 – criteria for personal orders other than an order for Welfare Guardianship

• The Court can make a Personal Order if a person is or becomes incapacitated & unable to make decisions;

• A Personal Order is an instruction given by a Judge requiring an action to be taken to look after a specific part of an incapacitated person’s care & welfare;

• The person must lack wholly or partly the capacity to understand the nature of consequences of decisions that relate to their personal care & welfare; or

• They must lack the capacity to communicate decisions about their personal care & welfare; (Section 6, 3PRAct 1988)

• Consult a lawyer for advice & assistance before making an application for a Personal Order.

Personal Orders

Personal Orders can require:

that a person’s parent(s) make arrangements for theperson’s care after the parent’s death;

an order that those arrangements set out above be observed or varied after the parents death;

That a person enter, attend or leave a specific institution (not a psychiatric hospital) - known as a placement order;

…be provided with particular living arrangements specified in the order;

…be provided with specified medical advice or treatment;

Personal Orders

• …a person is appointed as ‘next friend’ or ‘guardian ad litem’ for the person in regard to District Court proceedings;

• …be provided with specified educational, rehabilitative, therapeutic or other services specified in the order;

• …the person may not leave NZ except as the Court allows;• …a named person administer a specified item of property;• …a named person be appointed as a Welfare Guardian for

the subject person

Personal Orders

This Act does encourage solutions to problems to be

sought outside the law. S13 states that the Court may make

recommendations relating to a course of action that it considers should be followed by the parties in respect of whom the application is made…instead of an order.

Section 13, 3PRAct 1988

The Family Court can appoint a welfare guardian for a person only if the Court is satisfied that –

The person is completely unable to make or communicate decisions about their personal care and welfare;

Appointing a welfare guardian is the only satisfactory way to make sure appropriate decisions are made for the person.

Section 12 3PRAct 1988

This is an appointment of “last resort” – if there is a short term problem the Court will prefer to make other personal orders to deal with the problem rather than appointing a welfare guardian

Welfare Guardians

Application for Welfare Guardianship – very stringentjurisdictional criteria

12 (2) (a) that the person in respect of whom the application is made wholly lacks the capacity to make or to communicate decisions relating to any particular aspect or particular aspects of personal care and welfare of that person; and

(b) that the appointment of a welfare guardian is the only satisfactory way to ensure that appropriate decisions are made relating to that particular aspect or those particular aspects of the personal care and welfare of that person

Section 12 of the 3PRAct 1988

A family or anyone else cannot decide they will be the Welfare Guardian for the subject person. The Family Court makes the decision whether someone should have a welfare guardian….the Court decides who has capacity

There are clear guidelines for who should be appointed & how they should behave.

If a subject person acts in an unconventional or eccentric way, or makes decisions that the average person may not make, the Family Court does not have the power to make an order.

Welfare guardians

Even though they are substitute decision-makers, welfare guardians must consult with the subject person, their family, friends, health professionals etc, before any decision is made

Welfare guardian orders last for 3 years – they are reviewed every 3 years or sooner depending on the circumstances.

Welfare guardians do not take the place of parents.

A parent can only become a welfare guardian if the Family Court thinks they are the best person to take on that role

Welfare guardians

They have the power to make decisions for the subject person – but these decisions can only be about issues the Court has specified.

These decisions must:

• Promote & protect the subject person’s welfare & best interests

• Encourage the subject person to use what capacity they have

• Encourage the subject person to act on their own behalf wherever possible

• Help the subject person to be a part of the community as much as possible

• Consult with the subject person and others who can give competent advice

• Consult with the subject person’s property manager, if the Court has appointed one

The Family Court can give guidance, in carrying out the role, to new welfare guardians

Welfare Guardianswhat do they do?

• Should all people with an intellectual disability have a welfare guardian?

• Should people who are vulnerable and have high and complex needs, no voice, and/or ability to participate in decisions about their lives have welfare guardians?

• Should parents be welfare guardians? • Can staff make decisions for people with intellectual disabilities?• Can a subject person refuse to have a welfare guardian?• Does the Family Court know enough about people with an

intellectual disability? • Do lawyers know enough about people with an intellectual

disability?

Some issues?