A welfare guardian is appointed by a Family Court Judge under the Protection of Personal and Property Rights Act 1988 (PPPR Act).

A welfare guardian is a person appointed to make decisions about the care and wellbeing of an individual who does not have the ‘capacity’ to make these types of decisions for themselves (this person is called the “subject person”), or to appoint an Attorney under an Enduring Power of Attorney. A welfare guardian is responsible for all decisions related to the personal care and welfare interests of the subject person, including in relation to housing and medical needs. They cannot make decisions related to property interests or financial assets

Who can be a appointed a welfare guardian?

Requirements for appointment include that the proposed welfare guardian must be over the age of 20 and must be an individual (i.e. cannot be a company, trustee or any organisation). A welfare guardian does not need to live in New Zealand, though it is preferred.

The proposed welfare guardian must file an application requesting appointment, and must satisfy the Family Court that:

1. the subject person wholly or partly lacks the necessary mental capacity to make and communicate welfare decisions for themselves (therefore appointment of a welfare guardian is necessary); and
2. the proposed welfare guardian is an appropriate person to carry out the responsibilities of the role, and will wholly act in the best interests of the subject person.

What is the role of the welfare guardian?

When making and carrying out decisions, a welfare guardian must:

Act in the best interest of the subject person;

• Consult with the subject person (where possible), any jointly appointed guardians (where applicable), and any appropriate organisations to obtain advice in relation to the subject person’s care;
• Consult the subject person’s property manager (if applicable);
• Encourage the subject person to act in their own interest and develop capacity where possible; and
• Integrate the subject person into the community

In contrast to a property manager , welfare guardians are not required to file any documents with the Court during their appointment.

If a welfare guardian acts in bad faith or without reasonable care, or enters into any type of arrangement or contract withholding the knowledge that they are in fact a welfare guardian acting for someone else and that they are acting in their capacity, the may be held personally liable for those actions.

Lawyer for the subject person

Once an application is filed with the Court, it will appoint a lawyer for subject person (“L4SP”) will be appointed to represent the interests of the subject person and speak to the Court on their behalf. Following their appointment, the L4SP will usually meet and speak with the subject person (where possible) and provide the Court with a report on their assessment of them, including whether the orders sought are appropriate, if there is any further medical evidence required, etc.

Opposition to applications

All interested parties (e.g. family members, a care facility where the subject person stays, or anyone the subject person lives with) must be notified of the application as it is filed. The Court arranges service of the application on the interested parties (with some exceptions) if consents have not already been provided by those parties as part of the application.

If an interested party does not think the proposed welfare guardian is suitable for the role, they may oppose the application for appointment.

The Court makes the final decision regarding appointment, on the terms it considers fair.

How long does a welfare guardian appointment last?

The duration of appointment is up to the Court to decide, though usually an initial appointment as welfare guardian is for 3 years from the date the Court’s order is made.

When an initial appointment is nearing expiry of its term, a welfare guardian can apply for review and re-appointment. Re-appointment as welfare guardian may be for a term of up to 5 years.

Are welfare guardians paid?

Welfare guardians are not entitled to payment for their services. However, reasonably incurred expenses (such as legal fees or medical expenses incurred on behalf of the subject person) are payable from the subject person’s funds.

I’m thinking of making an application – what should I do first?

You need to obtain a medical assessment for the person whom you wish to apply to be appointed the welfare guardian of. The medical assessment should address whether they have capacity (or not) to make their own decisions and communicate the same. A doctor or GP should have experience in this and know what is required.

If the doctor or GP determines the person has capacity, then they can instruct a lawyer to prepare Enduring Powers of Attorney.

If the assessment determines they do not have capacity (partially or wholly), you will need to make an application under the PPPR Act to be appointed welfare guardian.