Property orders

(Protection of Personal and Property Rights Act 1988, s.31, 100)

What is a property order?

Where a person lacks the capacity to manage his or her own property affairs, the Family Court has the power to grant a property order. If an enduring power of attorney already exists the property order prevails over the enduring power and is binding on the attorney.

What are the types of property orders that can be made?

The Family Court can make two kinds of orders about property under the 3PR Act:

a personal order dealing with property, if the property is not large, or
a full property order

Personal order dealing with property

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

If the property is not large (that is, no single item is worth more than $2,000 or any income or benefit is less than $20,000 a year) the court may make a personal order appointing someone to administer the person’s property, instead of making a full property order (for information see “Personal orders” in this chapter).

Property order

The court may make an order appointing a property manager for a person who lacks the competence to manage his or her own property affairs (for information see “Property managers” in this chapter). Property managers can be appointed for property of any value. As far as possible the court will try to find out the wishes of the person concerned when appointing a property manager.

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

(Protection of Personal and Property Rights Act 1988, s.25)

To be made subject to a property order a person must:

own property,
consider New Zealand their permanent home, and
wholly or partly lack the competence to manage his or her property affairs, or
own property in New Zealand,
live or ordinarily live outside New Zealand, and
wholly or partly lack the competence to manage his or her own property affairs.

(Protection of Personal and Property Rights Act 1988, ss.24, 25)

Note: Everyone is presumed to be competent to manage his or her own property affairs, unless proved otherwise. A property order under the Act cannot be granted simply because a person makes decisions about their property which may not seem reasonable to other people.

Who can apply for a property order?

(Protection of Personal and Property Rights Act 1988, s.26)

The following can apply to the court for a property order to be made:

the person themself.
the spouse of the person. This means a spouse, civil union partner or de facto partner, parent, grandparent, child and grandchildren, brother sister, aunt, uncle, niece or nephew or spouse of any of them.
anyone to whom the person has given a power of attorney (for information see “Power of attorney” in this chapter).
a social worker within the meaning of the Department of Social Welfare Act 1971
a medical practitioner.
a trustee corporation.
a representative from any non-profit group providing services and facilities for people over whom the court has jurisdiction to make property orders.
the person in charge of a hospital, rest home or other institution in which the person in question is a patient or resident.
any welfare guardian appointed for the person under the 3PR Act (for information see “Welfare guardians” in this chapter).
any other person who has the leave of the court.

(Protection of Personal and Property Rights Act 1988, s.27)

A person in charge of a hospital or other institution can give notice to the Family Court registrar if they think that it is in the interests of a patient or resident for a property order to be made. The registrar may then refer the matter to a trustee corporation to investigate. If the trustee corporation finds that no-one is intending to make an application, but the corporation thinks that one would be in the person’s interest, the court can arrange for the situation to be drawn to the attention of those who have the right to apply under the Act.

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

Not necessarily. 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 familiar with this area.

Who will represent the interests of a person when someone else applies for a property order on their behalf?

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

The Family Court will make sure that the person 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 property order?

(Protection of Personal and Property Rights Act 1988, ss.28, 29)

The court will consider evidence to decide whether the person wholly or partly lacks the competence to manage his or her own property affairs (for information see “When can a person be made subject to a property order?” in this chapter). If the court decides the person lacks competence, it will then consider whether a property manager should be appointed and what rights and powers the manager is to be given (for information see “Property managers” in this chapter).

(Protection of Personal and Property Rights Act 1988, s.28)

The court is required to consider the degree of the person’s incompetence and as its primary objective only to make orders that are the least restrictive intervention possible in the management of the property affairs of the person. The court must also aim to enable or encourage the person to exercise and develop whatever competence he or she has to manage his or her property affairs to the greatest extent possible.

(Protection of Personal and Property Rights Act 1988, s.30)

Note: In situations where there is an urgent need for the protection of property, the court can grant a temporary property order for up to three months. The person affected will not necessarily know that an application for a temporary order has been made and does not have the right to attend or be heard at the hearing unless the court directs.

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 property order last for?

(Protection of Personal and Property Rights Act 1988, s.34)

A property order will cease to have effect if:

the person whose property is being managed dies,
the court discharges the property order, or
where a trustee corporation is acting as property manager, the person whose property is being managed gives written notice that the trustee corporation shall no longer act as manager.