By Vince Exconde, Lawyer, McWilliam Tyree Lawyers
When a member of a family loses the ability to make decisions for themselves, by illness or accident, it is a stressful time for their loved ones. As well as the emotional impact, there are practical concerns about who will make decisions about that person’s welfare and financial matters.
An Order appointing a Welfare Guardian and a Property Manager (or Property Administrator) is made by the Family Court when a person (“the Subject Person”) loses their mental capacity to make decisions in relation to their care and/or in relation to their property and they did not create Enduring Powers of Attorney while they still had mental capacity.
People who can apply for these Orders can be a family member, friend, a social worker, or any other person that is involved in the Subject Person’s life.
The test for “mental capacity” in this situation is whether the Subject Person can “foresee the consequences of their decisions in relation to their care and welfare, or in relation to their property.” This must be assessed by a medical practitioner and they provide a report which will accompany the applications to the court.
What is a Welfare Guardian?
The main role of a Welfare Guardian is to make decisions about the Subject Person’s care. Most of the time, the Subject Person’s doctor will decide what is in their best interests – especially if it is an emergency. The most common decision made by a Welfare Guardian is the Subject Person’s place of residence. For example, if their doctor has advised that they may need hospital-level care or rest home level care.
In some instances, the Welfare Guardian can also decide that the Subject Person resides with them so they can provide the care themselves (if it is appropriate to do so).
What is a Property Manager?
The role of the Property Manager is to manage the Subject Person’s cash assets and real assets (such as any homes they own, their furniture, and other chattels). The Property Manager also has the authority to do the following:
- Manage the Subject Person’s bank accounts, which includes paying their bills and other expenses.
- Enter into Agreements for Sale and Purchase. For example, if the Subject Person owns a house and it needs to be sold because the Subject Person will be living in a rest home.
If the Subject Person’s assets and annual income are below $25,000.00, then they will need a Property Administrator instead.
The role of a Property Administrator and Property Manager are similar, but the latter has more obligations to the Family Court because they are responsible for more assets.
Making applications
The appointment of a welfare guardian and/or property manager is very significant, as it limits a person’s ability to make decisions relating to the most fundamental aspects of their lives. It is important the applications made provide to the court all of the information it needs to make the right decisions for the subject person. It is also important that the person making the application understands the application they are making and what is involved.
We have lawyers experienced in making these types of applications and we are happy to assist. Please get in touch if you require assistance.