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What happens when there is no power of attorney in place for an incapacitated person?
16 October, 2013 | Carolyn Ranson
Article reviewed and updated 26 June 2025
When a person loses mental capacity due to conditions like dementia, intellectual disability, or an accident and has not appointed anyone to have authority to act under an Enduring Power of Attorney for either Property or for Personal Care and Welfare (EPOAs), their affairs cannot be managed by family members. In such cases, an application must be made to the Family Court under the Protection of Personal and Property Rights Act 1988 (PPPR Act).
Legal Process
Who applies?
A family member or another interested party must apply to the Family Court to be appointed as a:
- Welfare Guardian (for personal care and welfare decisions)
- Property Manager (for financial and property matters)
Court Involvement:
The Court appoints a lawyer for the incapacitated person to represent their views. The process involves affidavits, medical assessments, and can be stressful and time-consuming.
Example Scenario
Mary has been diagnosed as having Alzheimer’s and has no EPOAs in place. She can no longer cope on her own at home and her house must be sold and she has been assessed as requiring rest home care:
- Her daughter Sarah cannot legally make decisions regarding, or arrange for, her care or sell her house to fund the residential care.
- Sarah must apply to the Court to be appointed as both welfare guardian and property manager
Responsibilities of Appointees
Welfare Guardians make decisions about:
- Living arrangements
- Daily care
- Medical treatment
Property Managers handle:
- Bank accounts
- Bill payments
- Asset sales (e.g., selling a house, if explicitly authorised)
Who Can Apply?
While immediate family are typical applicants, non-family members may also apply if they have a legitimate interest in the person’s welfare. The Court prioritises the best interests of the incapacitated person.
Next Steps
If you suspect a family member is losing capacity:
- Obtain a medical assessment to confirm their ability to make decisions.
- If they still have capacity, arrange for EPOAs to be put in place immediately.
- If not, begin the PPPR Act application process with assistance from us – contact Carolyn Ranson by completing the form below or contact Carolyn Ranson at carolyn.ranson@smithpartners.co.nz
