Welfare guardians
Who is a welfare guardian?
(Protection of Personal and Property Rights Act 1988, s.12)
A welfare guardian is a person appointed by the court to look after the welfare of a person who is completely unable to communicate decisions or to understand decisions about their personal care and welfare.
Who will the court appoint as a welfare guardian?
(Protection of Personal and Property Rights Act 1988, s.12)
The court can appoint only one person (not being a body corporate) over 20 years of age to act as a welfare guardian. The court will, as far as its practical, find out what the wishes of the person are in relation to the appointment of a welfare guardian.
The court will not appoint any person to be a welfare guardian unless it is satisfied that:
- the proposed appointee is capable of carrying out the duties of a welfare guardian in a satisfactory manner, having regard to the needs of the person in respect of whom the application is made, and the relationship between that person and the proposed appointee,
- the proposed appointee will act in the best interests of the person in respect of whom the application is made,
- there is unlikely to be any conflict of interest between the proposed appointee and the person in respect of whom the application is made, and
- the proposed appointee consents to the appointment.
What does a welfare guardian do?
(Protection of Personal and Property Rights Act 1988, s.18)
A welfare guardian has a wide range of powers that are reasonably required to enable the welfare guardian to make decisions for the person for whom they are acting. In exercising those powers, the paramount consideration of a welfare guardian is the promotion and protection of the welfare and best interests of the person. The welfare guardian is also required to encourage the person to develop and exercise any capacity he or she may have.
A welfare guardian is also specifically required to:
encourage the person to be as self-reliant as possible
help the person to be as integrated into the community as possible
consult, as far as is practical, with the person for whom the welfare guardian is acting, and also with other interested people, such as hospital caregivers and any property managers appointed under the 3PR Act.
Are there any limits on the welfare guardian’s powers?
(Protection of Personal and Property Rights Act 1988, s.18)
Yes. A welfare guardian does not have the power to:
make decisions for the person about entering into or dissolution of a marriage or civil union
make decisions about the adoption of any of the person’s children
refuse consent to standard or life-saving medical treatment
consent to the person receiving electro-convulsive treatment
consent to brain surgery or brain treatment for the purposes of changing the person’s behaviour
consent to medical experimentation
Are there any safeguards to stop a welfare guardian abusing their power?
(Protection of Personal and Property Rights Act 1988, ss.21, 86, 89)
Yes. The following things help to prevent a welfare guardian abusing their power:
- The court must specify the areas of life over which the welfare guardian is given authority.
- A welfare guardian is not paid for their services, so cannot act out of financial motives. However, their expenses can be met (for information see “Does a welfare guardian get reimbursed for their expenses?” in this chapter).
- A welfare guardian can be personally liable for his or her actions if he or she fails to disclose that he or she is acting as a welfare guardian or acts in bad faith or without reasonable care.
- An application can be made at any time to the court to review the decisions of a welfare guardian.
- The personal order must be reviewed within three years and can be reviewed earlier on application.
- As a result of a review, a new welfare guardian can be appointed in the place of an unsatisfactory welfare guardian.
Does a welfare guardian get reimbursed for their expenses?
(Protection of Personal and Property Rights Act 1988, s.21)
All reasonable expenses incurred by a welfare guardian can be paid for out of the property of the person for whom the welfare guardian is acting.
If there is not enough money available to pay the welfare guardian’s reasonable expenses, the welfare guardian can be reimbursed from the Consolidated Account (Parliament’s bank account).