lawProtection of Personal Property Rights

December 30, 2019by Naomi Cramer

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.

            PERSONAL ORDERS

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.

WELFARE GUARDIAN

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.

by Naomi Cramer

If you are going through a divorce Naomi will make you feel comfortable every step of the way.  As a consummate professional your goals become hers, with customer service as our top priority. It has always been Naomi’s philosophy to approach whatever you do in life with bold enthusiasm and pure dedication. Complement this with her genuine passion for equal justice and rights for all and you have the formula for success. Naomi specialises in family law having practised in this area for more than 20 years. She also serves the greater Auckland region as and when her services are called upon by his extensive client database. With extensive experience, an analytical eye for detail, and continuing legal education Naomi’s skill set will maximise your legal rights whilst offering a holistic approach that best fits your individual needs. This is further enhanced with her high level of support and understanding. Naomi will redefine what you expect from your legal professional, facilitating a seamless experience from start to finish.   Her approachable and adaptive demeanor serves her well when working with the diverse cultures that make up the Auckland region. Blend her open and honest approach to her transparent process and you can see why she routinely delivers the satisfying results her clients deserve. If you want to maximise your legal rights, we recommend you book an appointment with Naomi today so she can detail the steps for you to achieve your goals.  Phone 09 213 9984 now.

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