WHAT DOES THE PROTECTION OF PERSONAL AND PROPERTY RIGHTS ACT DO?
The Protection of Personal and Property Rights Act 1988, commonly known as the PPPR Act, provides mechanisms for the management of property and care of adults who do not have the mental capacity to manage their own affairs or care for themselves. In particular the PPPR Act:
- enables people to grant enduring powers of attorney to trusted family members or friends allowing the attorney to make welfare and/or property decisions on the person’s behalf should she or he become incompetent to do so;
- allows the Family Court to make orders for the appointment of welfare guardians and property managers.
WHAT IS ELDER FINANCIAL ABUSE?
The World Health Organisation defines elder abuse as a single, or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust, which causes harm or distress to an older person.
Elder financial abuse typically involves family members, “friends”, caregivers or strangers misappropriating the financial resources of an elderly person for their own benefit. This may include gaining control over an elderly person’s bank accounts, misusing a power of attorney, or getting the elderly person to execute a new will in which generous provision is made for the perpetrator. Some perpetrators may “groom” an elderly person (befriend or build a relationship with them) and “turn” him or her against family members in order to establish a relationship of trust and dependence on the perpetrator. Older people living alone who have no adult children living nearby are particularly vulnerable to “grooming” by neighbors and friends who hope to gain control of their estates.
HOW DOES THE PROTECTION OF PERSONAL AND PROPERTY RIGHTS ACT HELP?
Under the Protection of Personal and Property Rights Act the Family Court can be asked to make an order appointing a suitable person the property manager of anyone who does not have competence to manage his or her property. Competency is a question of fact which is assessed at the time an application is made and involves considering whether a person can communicate choice, understand and manipulate relevant information, appreciate the situation and the consequences of the situation.
The Court will also consider whether the person is likely to be unduly influenced in how they manage their property.
There is no requirement under the Protection of Personal and Property Rights Act that the subject person is the victim of elder financial abuse. However where elder financial abuse is taking place the PPPR Act provides a ready-made mechanism for dealing with the situation.
WHO IS ELIGIBLE TO BE APPOINTED A PROPERTY MANAGER UNDER THE PROTECTION OF PERSONAL AND PROPERTY RIGHTS ACT?
The Protection of Personal and Property Rights Act provides a list of people who can apply to be appointed the property manager of a person who does not have the competence to manage his or her financial affairs. The list includes the person’s welfare guardian, a spouse or partner, grandchild, sibling, aunt or uncle, nephew or niece, social worker, medical practitioner or the Public Trust.
WHAT IS THE PROCEDURE FOR APPLYING FOR THE APPOINTMENT OF A PROPERTY MANAGER UNDER THE PROTECTION OF PERSONAL AND PROPERTY RIGHTS ACT?
A written application supported by affidavit evidence needs to be filed in the Family Court. Typically, in the case of elderly people, the Court will require a report on the subject person from an experienced psycho-geriatrician.
Copies of the proceeding need to be served on certain people including the subject person her or himself, the persons the subject person is living with and any person holding an enduring power of attorney.
If there is an urgent need for the protection of the subject person’s property an application for the appointment of a temporary manager can also be filed enabling a temporary manager to be appointed for three months subject to any extension of time.
The subject person must be represented by a lawyer and the Court is required to ensure one is appointed unless it is satisfied that the person already has someone acting for him or her. The paramount concern of the lawyer for the subject person is to protect their client’s welfare. The lawyer must also consider whether the solutions proposed by the other parties are consistent with the objectives of under the Protection of Personal and Property Rights Act.
WHAT CAN BE DONE IF THE SUBJECT PERSON HAS ALREADY SIGNED A WILL IN FAVOUR OF SOMEONE WHO HAS USED UNDULY INFLUENCE TO GAIN THE SIGNING OF THE WILL?
The Protection of Personal and Property Rights Act gives the Court the power to authorise a property manager to make a will for a person who lacks testamentary capacity. The Court will use this power if it is satisfied that the subject person has made a previous will while he or she was unduly influenced by someone else to make the will and/or lacked testamentary capacity when he or she made that earlier will.
Alex McDonald, Elder Law Lawyer & Barrister, Auckland