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Frequently Asked Questions
Answers in italics are extracts from the legislation.
1) Why have a welfare guardian?
If someone is over the age of 18 no-one else can make any decision regarding their personal care and welfare unless that person either:
2) Who needs a Welfare Guardian?
The Court will appoint a welfare guardian for someone (the Subject Person) only if the Court is satisfied:
- that the person in respect of whom the application is made wholly lacks the capacity to make or to communicate decisions relating to any particular aspect or particular aspects of the personal care and welfare of that person; and
- that the appointment of a welfare guardian is the only satisfactory way to ensure that appropriate decisions are made relating to that particular aspect or those particular aspects of the personal care and welfare of that person.
The main reasons that a Welfare Guardian is appointed are:
- that the Subject Person has dementia,
- that the Subject Person has a long-term brain damage.
The fact that a person might be making poor decisions regarding their own personal care and welfare is NOT an acceptable reason to seek the appointment of a Welfare Guardian.
3) Why have a volunteer Welfare Guardian?
The Court will normally appoint a suitable relative as a Welfare Guardian. Any relative wishing to be so appointed should contact a lawyer in order to make application to the Family Court. Click here to find a lawyer.
Only if the Subject Person has no locally available or suitable relatives will the Court appoint a volunteer Welfare Guardian. Most requests for the appointment of a volunteer Welfare Guardians occur when the Subject Person has no known relatives; when their relatives live in another part of New Zealand or overseas or when the person's family cannot agree on which of them should be appointed.
4) Who can be a welfare guardian?
The Court must be satisfied that the proposed Welfare Guardian is:
- aged 20 or older and capable of carrying out a welfare guardian’s duties satisfactorily
- will act in the Subject person's best interests, and
- does not have any conflict of interest.
- have given written consent to their appointment
The Court will only appoint more than one Welfare Guardian in exceptional circumstances. For more information about this contact a lawyer.
The Court will try to discover if the Subject Person has previously created an Enduring Power of Attorney (EPA) or identified a suitable Welfare Guardian. People wishing to plan ahead usually create an EPA while they still have legal capacity; alternatively they can name someone (with their consent) in a Will or other legal document.
Click the links below for more information about EPAs:
5) What does a Welfare Guardian do?
Once appointed a Welfare Guardian may make all necessary decisions about the Subject Person's care and welfare subject to any limitations contained in the Court Order. They have the duty to ensure such decisions are carried out.
When a Welfare Guardians is making and carrying out decisions, s/he must:
- promote and protect the Subject Person’s welfare and best interests;
- encourage the person to develop and use whatever capacity they do have;
- encourage the person to act on their own behalf wherever possible ;
- make decisions which integrate the Subject Person into the community as far as is possible.
The Welfare Guardian has a duty to consult, prior to making decisions, with:
- the Subject Person,
- anyone who is interested in and competent to advise the Welfare Guardian about the Subject Person’s care and welfare,
- any group providing services and/or facilities to the Subject Person,
- the Subject Person’s Court-appointed property manager.
The Welfare Guardian must disclose their status as Welfare Guardian when consulting with the above parties.
If a Welfare Guardians needs guidance in making and/or ensuring their decisions are carried out, they can ask the Family Court to give them directions.
6) What a Welfare Guardian must NOT do
A Welfare Guardian is forbidden to:
- make any decision about the Subject person getting married or entering into a civil union, or ending (dissolving) a marriage or civil union;
- make any decision to do with the adoption of any of the Subject Person's children;
- refuse to allow the Subject Person to have any standard medical treatment or operation that is intended to save their life or prevent serious damage to their health;
- allow the Subject person to be given electro-convulsive treatment;
- allow any surgery or other medical treatment that is intended to destroy any part of the Subject Person's brain, or to change the way their brain works, or to change their behaviour;
- allow the person to be part of any medical experiment (except one to save the person’s life or prevent serious damage to their health).
7) When does the welfare guardian’s appointment end?
A Welfare Guardian's appointment ends:
- if the Court discharges the Order appointing the Welfare Guardian.
- on the expiry of the Court Order. This is usually 3 years fro the date of the original Order. The Welfare Guardian may apply for a new order, but should do so at least 3 months before the original Order expires.
- on the death of the Subject Person
- on the death; bankruptcy or other incapacity of the Welfare Guardian.; detention in a mental institution or other incapacity of the Welfare Guardian.
8) Can the Welfare Guardians decisions be challenged?
Providing that the Welfare Guardian has disclosed their appointment to all concerned parties the Welfare Guardians decisions, or lack thereof, cannot be challenged unless, on application to the Court, it is shown that the welfare guardian acted in bad faith or without reasonable care.
9) How do I apply for a welfare guardian to be appointed?
If you are an approved volunteer Welfare Guardian click Local page and then go to your nearest listed Trust to get more information and Application forms.
If a relative or other person with a legitimate interest seeks the appointment of a Welfare Guardian an application must be filed with the Family Court office nearest to the proposed Subject Person, using special forms. You can get the necessary forms from the Family Court website or from your local Family Court.
Before you apply, you may want to get advice and help from a lawyer. Click here to find a lawyer. Your lawyer can advise you on eligibility for legal aid for making an application. More information on Legal Aid is available from The Ministry of Justice website Legal Aid.
Your local Community Law Service may also be able to advise you.
For more information about applying for an order and how the Court process works, contact the registrar at your local Family Court.