The family Court can make orders in respect of personal care and welfare and also in respect of property.
Often both personal and property orders are made at the same time.
The Protection of Personal and Property Rights Act 1988 sets out a wide range of people that can apply to the family court for a personal order and including; a social worker, a person’s attorney, ie a person appointed under a power of attorney. A medical practitioner and more commonly a relative, such as a spouse, including civil union or de facto partner, grandparent, child, parent, grandchild, sibling,aunt, uncle, step-children, nephew, niece .
No preference is accorded to any one relative over the others, they all have the right to apply to the family court for orders.
The typical case will be that person’s child or children who apply to the family court for orders.
Before the family court decides whether to issue an order under the PPPR Act, it must analyze that person’s capacity. There is a presumption of competence, and thus the onus of proof is upon the applicant.
Even where the presumption of capacity has been rebutted or displaced, the Court nevertheless retains a discretion to decide whether or not to grant an order at all.
The Court must consider the primary objectives of the Act especially the principle of least restrictive intervention, which incorporates an assessment of that person’s best interests.
In some situations the person concerned may not be sufficiently incapacitated to warrant a court order and to do so may be unduly intrusive and inconsistent with the least restrictive principle.
There may also be occasions where the Court considers that in a contested case the application has been brought with interests other than those of the person concerned in mind.
In these cases, the Court may decide not to make orders and instead make recommendations under section 13 which is more in line with the principle of the least restrictive intervention and the best interests of the individual concerned.
The main question the court must face in deciding jurisdiction is that of capacity which is given a very wide test but basically the person must either lack understanding or be unable to communicate.
The inability to communicate must be total and not partial. Partial lack of communication skills will be insufficient to give the Court jurisdiction to make orders under the Act.
POWERS OF THE FAMILY COURT
Even if the Court decides that an order is warranted, it retains a further discretion to decide what type of order to make, if to make one at all. The court may decline to make an order if it would be unduly intrusive.
There are a wide range of personal orders that the Court can choose from, such as appointing a welfare guardian, which is a more long-term measure and one which is likely to be taken as a last resort after all other forms of order have been explored.
If orders are made the family Court will specifying a review date and can make supplementary orders and give supplementary directions.
The family Court can also make orders with respect to the accommodation and living conditions of the person concerned.
The appointment of a welfare guardian is the most drastic order the family court can make under the PPPR legislation and ought only be done as a last resort due to the principle of least restrictive intervention.
Section12 of the Act requires the welfare guardian’s appointment to only make up for that specific shortfall in capacity, rather than to manage the person’s entire life.
PROPERTY ORDERS AND MANAGERS shall be discussed in a further post.
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