What happens when there is no power of attorney in place for an incapacitated person?

16 October, 2013 | Smith and Partners

In 2013, Mary’s Alzheimer’s reached the stage where she no longer had the capacity to make decisions for herself. Mary had not granted a power of attorney to manage her property or her affairs.  Her daughter, Sarah, wants to arrange for her to go into a residential care facility and needs to sell her mother’s house and look after her financial affairs – what are her options?

As Mary had not granted an enduring power of attorney for her personal care and welfare, no-one can make decisions regarding her personal care and welfare, such as deciding which residential care facility she would be placed into.

Similarly, if Mary had not granted power of attorney for her property, no-one would be able to make decisions regarding the management of her property. For example, Sarah would be unable to sell Mary’s house in order to finance her residential care, she would be unable to access bank accounts, manage the payment of any bills etc.

The Protection of Personal and Property Rights Act 1988

Sarah’s only recourse is to apply to the Family Court to be appointed (herself or on behalf of someone else) as the welfare guardian and/or property manager of a mentally incapacitated person (“the subject person”).

Obligations and duties of welfare guardians

Welfare guardians have an obligation to make all decisions in the best interest of the subject person. Particular duties are given to them at the Court’s discretion, but can be very broad. Duties may include making decisions regarding:

• The subject person’s place of residence;
• Ensuring their daily needs are met;
• Medication and treatment plan etc.

Obligations and duties of property managers

Property managers also have an obligation to make all decisions regarding the subject person’s property in accordance with the subject person’s best interest. Property managers manage and possess the subject person’s property; they do not own the property. Property managers can be responsible for various duties such as managing the subject person’s bank accounts, purchasing goods or services for the subject person, selling the subject person’s assets to retain cash-flow, paying the subject person’s bills etc.

Who can apply to be a welfare guardian and/or property manager?

Various people can apply to be a welfare guardian and/or a property manager of a subject person. This is not limited to family members; however, the Court will look favourably upon applicants who have a legitimate interest in the subject person’s affairs.

The application process

Depending on the complexity of the situation, the application process can take some time.

You will need to consult a lawyer who will prepare an application and affidavit in the prescribed form to the Family Court covering a variety of information.

Unless a lawyer for the subject person has already been appointed, the Court will appoint one. The lawyer for the subject person is responsible for considering the subject person’s views, and as far as practicable, give effect to those views. The lawyer for the subject person is then required to report back to the Court.

Upon the appointment of a welfare guardian and/or property management role, the appointed person is then entitled to manage the subject person’s property and/or welfare in accordance with the court order.

Who to contact for assistance

Do you want to make an application to become a welfare guardian and/or property manager of a mentally incapacitated person?