We all know that the health system is gearing up to cope with an ageing population, but what about the legal system? There are many laws that specifically affect older people that potentially could do with a review as our society has changed a lot since most of them were passed. Dunedin lawyer Alison Douglass has identified a need to update New Zealand’s adult guardianship law, the Protection of Personal and Property Rights Act.
What does the Act currently do?
The Act provides mechanisms for decision-making on behalf of people who lack capacity to make decisions for themselves. It was designed not as an ambulance at the bottom of a cliff, but a means of providing for the present and future needs of those with incapacities. Prior to the Act, legislation provided for the High Court to make orders with respect to property, but no equivalent existed for personal issues. The latter could have been the subject of the High Court’s inherent parens patriae jurisdiction but rarely was this used.
The Act contains several important mechanisms. First, the Family Court can make direct personal orders on a range of specific matters affecting the subject person. Some of the most
important such decisions relate to health and residence, including institutionalisation. Secondly, the court can appoint a welfare guardian, who will typically have wide-ranging powers to make personal decisions on an ongoing basis on behalf of the person concerned. The court can also appoint a property manager, who may be an individual or a trustee corporation. Finally, the Act allows for a competent person to grant “enduring powers of attorney”. These relate to either personal or property matters, and often both kinds will be granted at the same time. This enables a trusted person to be chosen ahead of time for the purpose of acting when the donor of the power loses capacity. An ordinary power of attorney cannot achieve this result because it expires when the donor loses capacity
Why do we need to update it?
Alison Douglass argues that because people are living for longer, and there are an increasing number of older people living with Alzheimer’s and Dementia, that they could be particularly vulnerable in the health system. Douglass also adds, ‘New Zealanders can create an enduring power of attorney – a statement someone can act on their behalf if they become unable to do so – but there is no register for those orders or body overseeing their enforcement, meaning people’s intentions might be overridden.”Her research, titled: “Mental Capacity: Updating New Zealand’s Law and Practice” delves deeper into why this act no longer fulfills the current need in New Zealand society.
The Protection of Personal and Property Rights Act 1988 (PPPR Act) is out of date and in need of review. The range of people to whom the legislation applies and the social environment in which it operates are now very different from when it was passed at the peak of the era of deinstitutionalisation of large psychiatric facilities. The legislation’s weakness lies in its unnecessary complexity and lack of clarity about two essential concepts. These are capacity (or incapacity) – the legal “bright line” determining whether intervention is permitted in people’s lives; and best interests – the standard upon which others should make decisions for people with impaired capacity, taking into account their will and preferences. Importantly, the PPPR Act lacks an adequate mechanism for oversight of its implementation in keeping with the principles underpinning it. There has never been a public body that champions it and educates the public (and professionals working within the health and disability sector) about it. For the legal framework to have more integrity, there needs to be such a body and a clear and precise law that is accessible to all. – Alison Douglass, Executive Summary
What do you think?