Lawyers are concerned about the increase in applications for guardianship



Claims for personal and property rights are nearly double what they were 10 years ago, with experts warning of rising abuse, costs and quality of life for people forced to go through the family court system

Kristine King is making far more applications for conservatorship than before, and isn’t surprised that Justice Department data confirms this.

“It’s a horrible situation for the families and it only becomes apparent after the fact and often it’s urgent because there are things that need to be sorted out.”

Applications for guardianship of a person under the Personal and Property Rights Protection Act (PPPR) are up 85% from 2012. There were 6,378 made in 2021, the majority of which were approved.

The order allows people to apply to be appointed as guardians when a person does not have a continuing power of attorney and lacks the ability to make decisions about their personal affairs.

King, director of Duncan King Law and vice president of the Law Society’s property law section, said the increase was the result of several factors, including an aging population that was living longer, the nonchalance around the establishment of an Enduring Power of Attorney (EPA), and a tightening of security and processes by organizations, which meant that supporting a loved one was not as easy as before.

“Let’s say Grandma lost the ability [to manage her affairs]in the past, the child would take her to the bank to pay bills or withdraw money, but it is much more difficult now.

“The world is mostly cashless, there are no checks and external agencies have tightened their process to make sure they’re dealing with the right people, so families’ ability to manage this internally is eroded.”

“There’s this perception that it’s just for old people but accidents happen…you don’t get insurance because you want your house to burn down.” – Kristine King, Lawyer

She said the family court application usually comes at a stressful time for families, such as a loved one moving into a care home, and she wants people to consider creating an EPA earlier in the year. life.

“There’s this perception that it’s just for old people but accidents happen…you don’t get insurance because you want your house to burn down.”

King said it would help if the EPA system was centralized, as families sometimes did not know if a guardian had already been appointed.

“These are private documents, so some people have multiple sets of EPAs because they forgot they have one and there’s no easy way for lawyers to check.

“Many are also invalid EPAs, if they are not signed correctly or if the husband and wife have just been appointed as EPAs but neither has the ability to care for each other anymore.”

She said going through court for guardianship costs about 10 times the amount of having an EPA set up earlier in life.

“The cost, the delay, the disruption…it’s a no-brainer.”

older people

Hanny Naus, an elder abuse and neglect educator with Age Concern, wasn’t surprised by the numbers either.

“It’s not unreasonable to say that over a 10-year period we’re likely to see this progression because older people are living longer and also make up a higher percentage of the overall population. So, to some extent, these numbers are not alarming.

She said some seniors were discouraged by the EPA process for cost and cultural reasons.

“There’s actually quite a prohibitive cost to doing this…to do it well, which involves making sure people aren’t coerced and all the complications that come with that cost money.

She said it was unclear whether an increase in these types of guardianship orders would be linked to an increase in abuse, but could not rule it out.

“We actually find that even when people have enduring powers of attorney in place, sometimes it’s the people who have been appointed who also abuse the elderly. So there is always a puzzle.

And it’s not always a family member who assumes guardianship, with a higher proportion of these applications involving a public trust.

Managing director Glenys Talivai said there had been a 227% increase over the same period in applications for trusts to be a client’s guardian.

“Anecdotally, the majority of these requests come from people aged 65 or over, although in some areas we have a higher number of younger people making PPPR requests,” she said.

People with Disabilities

IHC Advocacy Director Tania Thomas said organizations’ tightening privacy and security policies have led to more parents seeking guardianship of their disabled adult children.

“IHC is hearing from families that banks, government departments and healthcare professionals are telling them that they must have legal guardianship or property management orders in place if they want to help with financial management, supporting the income and health decisions.

“Due to money laundering legislation, banks have tightened their requirements for customer identification (many people with intellectual disabilities do not have a driver’s license, passport or firearms license). fire – usual forms of identity) and this has led to an increase in guidance for families to seek legal orders for guardianship and/or property management.

“IHC argues that new demands placed on banks should not come at the expense of individual human rights or flexible arrangements that meet an individual’s support needs.”

She said that in some situations having a legal guardian can be helpful and appropriate, but sometimes it was a step too far and IHC had heard many examples of family court decisions that disadvantaged people with disabilities and diminished their rights. .

Supported or substitute decision-making

Thomas urged families of people with disabilities to reach out to their loved one and seek supported decision-making options first.

Supported decision-making occurs when the person with a disability chooses friends, family members and other people they trust to be their supports.

Caregivers do not make decisions for them, rather they help the person make or communicate their own decisions.

The UN Committee on the Rights of Persons with Disabilities has recommended that New Zealand move from substitute decision-making to supported decision-making laws and practices to ensure compliance with the obligations of Article 12 of the Convention on the Rights of Persons with Disabilities.

New Zealand ratified the Convention in 2008.

Thomas said the fact that requests and orders were increasing showed that New Zealand was not implementing this recommendation.

Erika Butters of the Personal Advocacy and Safeguarding Adults Trust said too many people are opting for guardianship by default, and it was only intended as a last resort.

“I think the reason people end up not respecting that is because of other organizations, like banking organizations or healthcare. They put their own policies in place around risk and that’s what drives people, more than the PPPR itself.

“If it was in other aspects of civil rights, there would be a lot more uproar about it.”
– Erika Butters, Disability Advocate

She also said the government’s Enabling Good Lives program, designed to give people with disabilities more choice and control over their lives, may have contributed to the spike in claims.

“I’m inclined to think that perhaps moving towards a system that promotes a greater degree of choice, without also having a partner system that supports people in their practice of decision-making, it actually pushes more whānau and providers who may not be confident around supported decision-making processes towards substitute decision-making by default.”

“So, as an example, if a person has more flexibility in choosing where they want to live to receive residential disability support, and they are now able to do that choice itself, it can actually have the unfortunate side effect of causing those around them to say, okay, we have to find a guardian in another place to make this choice.

Law Commission

In October 2021, the Law Commission confirmed that it would review the Adult Decision-Making Act.

Commissioner Geof Shirtcliffe said at the time that there had been significant developments since the law was written and that attitudes towards disability in particular had changed. He also noted the aging of the population.

“Furthermore, our law may not be compatible with the perspectives of tea o Māori, te Tiriti o Waitangi and the rights of the tāngata whaikaha Māori, their whānau, hapū and iwi,” he said.

Butters hoped the review would lead to meaningful changes.

“This is an extremely urgent problem. Every day people are stripped of their right to citizenship in this country, because they are stripped of their right to make decisions in their own lives.

“The things that you and I can take for granted on a day-to-day basis, they are unable to do and if it was in other aspects of civil rights there would be a lot more uproar about it.”

She was also pinning her hopes on change coming from the new Disability Department, which came into effect along with other health reforms on July 1.

The Law Commission is expected to submit its report to the Minister of Justice by the end of 2023.


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