Personal and property rights applications are close to double what they were 10 years ago with experts cautioning a rise in abuse, costs and quality of life for those forced through the Family Court system
Kristine King is doing far more guardianship applications than she used to, and isn’t surprised the Ministry of Justice data backs that up.
“It’s a horrible situation for families to be in 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 Protection of Personal and Property Rights Act (PPPR) are up 85 percent on 2012. There were 6378 made in 2021, the majority of which were approved.
The order enables people to apply to be appointed as a guardian where a person does not have an enduring power of attorney and does not have the capacity to make decisions relating to their personal affairs.
King, a director at Duncan King Law and deputy chair of Law Society property law section, said the rise was a result of multiple factors, including an ageing population that was living longer, nonchalance around setting up an enduring power of attorney (EPA), and a beefing up of security and processes by organisations which meant supporting a loved one was not as easy as it used to be.
“Let’s say grandma has lost capacity [to manage her affairs], in the past the child would take her to the bank to pay her bills or get some cash out but it’s much harder now.
“The world is mostly cashless, there’s no cheques and external agencies have tightened up their process to make sure they’re dealing with the right people so the ability for families to manage this in-house is eroded.”
"There’s this perception it’s just for oldies but accidents happen… you don’t get insurance because you want your house to burn down.” - Kristine King, lawyer
She said applying to the Family Court usually came at a stressful time for families, such as moving a loved one into a care home, and she wished people would consider setting up an EPA earlier in life.
“There’s this perception it’s just for oldies 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 centralised as families were sometimes unsure if a guardian had already been appointed.
“These are private documents, so some people are having multiple sets of EPA because they’ve forgotten they have one and there’s no easy way for lawyers to check.
“Quite a lot are also invalid EPAs, if they’re not signed properly or the husband and wife have just appointed each other as an EPA but neither have the capacity to care for each other anymore.”
She said going through the court for guardianship cost about 10 times the amount of setting up an EPA earlier in life.
“The cost, the timeframe, the upset… it’s a no-brainer.”
Older people
Age Concern elder abuse and neglect educator Hanny Naus was also unsurprised by the figures.
“It’s not unreasonable to say that over a 10-year period we are likely to see this progression because older people are living longer and also a larger percentage of the overall population. So to some extent, these figures are not alarming.”
She said some older people were put off by the EPA process due to cost and cultural reasons.
“There’s actually quite a prohibitive cost to this… to do it well which involves making sure that people aren’t coerced and all the complications around that costs money.
She said it was not clear a rise in these types of guardianship orders would be linked to a rise in abuse, but couldn’t rule it out.
“We actually see that even when people have set up enduring powers of attorney, sometimes it’s those people who have been appointed who actually abuse the older people as well. So there’s a conundrum always.”
And it is not always a family member that takes on guardianship, with a higher proportion of these applications involving a public trust.
Chief executive Glenys Talivai said there had been a 227 percent increase in the same period in applications for the trust to be a client’s guardian.
“Anecdotally, the majority of these applications are from those aged 65 or over, although in some regions we do have larger numbers of younger people making PPPR applications,” she said.
Disabled people
IHC Advocacy director Tania Thomas said the tightening of organisations’ privacy and security policies had resulted in more parents applying for guardianship of their adult disabled children.
“IHC hears from families that they are told by banks, government departments and medical professionals that they must have legal guardianship or property management orders in place if they want to help with financial management, income support and health decisions.
“Due to money-laundering legislation, banks have tightened their customer identity requirements (many people with an intellectual disability do not have a driver’s licence, a passport or a firearm’s license - usual forms of identity) and this has resulted in increased advice to families to seek legal orders of guardianship and or property management.
“IHC maintains that the new requirements on banks should not be at the expense of individual human rights or flexible arrangements that respond to an individual’s support needs.”
She said in some situations having a legal guardian may be helpful and appropriate, but sometimes it was a step too far and IHC had heard many examples of Family Court decisions that disadvantaged disabled people and diminished their rights.
Supported v substitute decision-making
Thomas urged families of disabled people to communicate with their loved one, and to firstly look to supported decision-making options.
Supported decision making is when the disabled person picked friends, family members, and other people they trust to be their supporters.
Supporters do not make decisions for them, rather they help the person make or communicate their own decisions.
The United Nations Committee on the Rights of Persons with Disabilities has recommended New Zealand move from substitute decision making to supported decision-making laws and practice to ensure Article 12 obligations of the Convention on the Rights of Persons with Disabilities are met.
New Zealand ratified the Convention in 2008.
Thomas said the fact applications and orders were going up showed New Zealand was failing to implement this recommendation.
Erika Butters from the Personal Advocacy and Safeguarding Adults Trust said too many people went for guardianship as a default, and it was only intended to be a last resort.
“I think the reason why people end up defaulting to that is because of other organisations, such as banking organisations or health. They put in place their own policies around risk and that's what pushes people, more than the PPPR itself.
"If it was in any other aspects of civil rights, there would be much more uproar about this.” – Erika Butters, disability advocate
She also said the Government’s Enabling Good Lives programme, designed to give disabled people more choice and control over their lives, may have contributed to the uptick in applications.
“I'm inclined to think perhaps in shifting towards a system that promotes a greater degree of choice, without also having a partner system that supports people in their decision-making practice, that actually is pushing more whānau and providers that may not be confident around supported decision-making processes towards substitute decision making as a default.”
“So as an example, if a person has a greater degree of flexibility in choosing where they want to live for residential disability support, and now they're able to make that choice themselves, that may actually have the unfortunate by-product effect of pushing those around them to say, okay well we need to get a guardian a different place to make this choice.”
Law Commission
In October 2021 the Law Commission confirmed it would review the law relating to adult decision-making capacity.
Commissioner Geof Shirtcliffe said at the time, there had been significant developments since the law was penned, and attitudes towards disability in particular had shifted. He also noted the ageing population.
“Further, our law may not be compatible with perspectives from tea o Māori, te Tiriti o Waitangi and the rights of tāngata whaikaha Māori, their whānau, hapū and iwi," he said.
Butters was hopeful the review would result in meaningful change.
“It's a critically urgent issue. Every day, there are individuals who are stripped of their rights to citizenship in this country, because they're stripped of their rights to make decisions in their own lives.
"The things that you and I may take for granted on an everyday basis, they're unable to do and if it was in any other aspects of civil rights, there would be much more uproar about this.”
She was also pinning hopes on change coming from the new Ministry for Disabled People, which came into effect with other health reforms on July 1.
The Law Commission is expected to come back to the Minister of Justice with its report by the end of 2023.
