Personal orders

What is a personal order?

Where a person does not have enduring power of attorney, and lacks the capacity to manage his or her own personal care and welfare, the Family Court has the power to place them under a personal order.

When can a person be made subject to a personal order?

(Protection of Personal and Property Rights Act 1988, s.6)

To be subject to a personal order a person must either:

lack, partly or fully, the capacity to understand the nature of decisions about their own personal care and welfare, and the capacity to foresee the consequences of such decisions, or
have these capacities, but wholly lack the capacity to communicate decisions about these matters.

They must also:

normally live in New Zealand, and
be at least 18 years old, or
be at least 16 years old and be married, or in a civil union or de facto relationship, or have been in one of these relationships.

(Protection of Personal and Property Rights Act 1988, s.5)

Note: Everyone is presumed to have the capacity to make decisions for themselves about their personal care, and to be able to communicate those decisions, unless proved otherwise. A personal order under the Act cannot be granted simply because a person makes decisions which may not seem reasonable to other people.

Who can apply for a personal order?

(Protection of Personal and Property Rights Act 1988, s.7)

The people who can apply for a personal order are:

the person themself.
a relative of the person. This means a spouse, civil union partner or de facto partner, parents and grandparents, children and grandchildren, brothers and sisters, aunts and uncles, nieces and nephews.
anyone to whom the person has given a power of attorney (for information see “Power of attorney” in this chapter).
a social worker from the Department of Child, Youth and Family Services.
a medical practitioner.
a representative from any non-profit group providing services and facilities for people over whom the court has jurisdiction to make personal orders.
the person in charge of a hospital, rest home or other institution in which the person in question is a patient or resident.
the manager of the person’s property under any property order made under the 3PR Act (for information see “Property orders” in this chapter).
any other person, with the leave of the court.

Does an application for a personal order need to be made through a lawyer?

No. An application form can be obtained from the Family Court, filled in, and filed at the Family Court. There is no filing fee. However, people are advised to consult a lawyer.

Who will represent the interests of a person when someone else applies for a personal order over their affairs?

(Protection of Personal and Property Rights Act 1988, s.65)

The Family Court will make sure that the person in respect of whom an application is made is legally represented, if necessary at public expense, and will also ensure that appropriate investigation into the person’s circumstances is carried out.

What things will the court consider in deciding whether to make a personal order?

(Protection of Personal and Property Rights Act 1988, s.9)

The court will consider evidence to decide whether the person has lost capacity (for information see “When can a person be made subject to a personal order?” in this chapter). If the court decides the person lacks capacity, it will then consider what action should be taken (for information see “What kind of personal orders can the court make?” in this chapter).

(Protection of Personal and Property Rights Act 1988, s.8)

The court is required to consider the degree of the person’s incapacity and only to make orders that are the least restrictive intervention possible in the person’s life. The court must also aim to enable or encourage the person to exercise and develop whatever capacity he or she has to the greatest extent possible.

What kind of personal orders can the court make?

(Protection of Personal and Property Rights Act 1988, ss.10, 12)

The court can appoint a “welfare guardian” for people who are totally unable to communicate decisions or understand decisions about their personal care and welfare (for information see “Welfare guardians” in this chapter).

(Protection of Personal and Property Rights Act 1988, s.10)

The court may also make a variety of other orders short of appointing a welfare guardian. These include orders:

for payment for work performed,
that any parent of the person make suitable arrangements for the person’s care after the parent dies,
that the person be provided with specific living arrangements,
that the person be provided with specific educational, rehabilitative, therapeutic or other services,
that the person be provided with medical advice or treatment.

For other types of orders which can be made, refer to S.10 of the Act.

(Protection of Personal and Property Rights Act 1988, ss.10, 11)

Note: The court may also make a personal order appointing someone to administer the person’s property if the court believes that a full property order is unnecessary (for information see “Property orders” in this chapter).

Is personal attendance of the person who lacks capacity required at the court hearing?

(Protection of Personal and Property Rights Act 1988, ss.74, 75)

The Act requires that the person be present at the hearing unless:

the court is satisfied that he or she wholly lacks the capacity to understand the proceedings, or that attending may cause the person serious mental, emotional or physical harm, or
the person makes such a disturbance throughout the hearing that the court considers that it cannot continue with the person being present.

How long does a personal order last for?

(Protection of Personal and Property Rights Act 1988, s.17)

The court will usually specify a date on which the order ceases to have effect. If it doesn’t, the order ceases after 12 months or when the effect of the order comes to an end to ensure the making of appropriate decision.