Protection of Personal and Property Rights Act 1988

1: Short Title and commencement
1: This Act may be cited as the Protection of Personal and Property Rights Act 1988.
2: This Act shall come into force on 1 October 1988.
2: Interpretation
In this Act, unless the context otherwise requires,— attorney child court
a: for the purposes of Part 9A section 108A
b: for any other purpose of this Act, means the Family Court manager section 31 section 32 section 33 section 11 medical practitioner section 114(1)﻿(a) parent A person subject to a property order section 32 section 33 personal order section 10 section 11 section 12 section 14 property property order section 31 section 30 psychologist section 114(1)﻿(a) relative
a: the spouse, civil union partner, or de facto partner of that person; and
b: a parent or grandparent of that person or of the spouse or other person referred to in paragraph (a); and
c: a child or grandchild of that person or of the spouse or other person referred to in paragraph (a); and
d: a brother or sister of that person, or of the spouse or other person referred to in paragraph (a), whether of the full-blood or of the half-blood; and
e: an aunt or uncle of that person, or of the spouse or other person referred to in paragraph (a):
f: a nephew or niece of that person, or of the spouse or other person referred to in paragraph (a) social worker department for the time being responsible for the administration of the Oranga Tamariki Act 1989 trustee corporation Māori Trustee Public Trust Trustee Companies Act 1967 welfare guardian section 12 Section 2 court substituted 1 March 2002 section 170(1) Public Trust Act 2001 Section 2 court amended 1 March 2017 section 261 District Court Act 2016 Section 2 medical practitioner inserted 18 September 2004 section 175(1) Health Practitioners Competence Assurance Act 2003 Section 2 parent substituted 26 April 2005 section 7 Relationships (Statutory References) Act 2005 Section 2 psychologist inserted 18 September 2004 section 175(1) Health Practitioners Competence Assurance Act 2003 Section 2 relative paragraph (a) substituted 26 April 2005 section 7 Relationships (Statutory References) Act 2005 Section 2 social worker substituted 1 April 1990 section 36(5) Social Welfare (Transitional Provisions) Act 1990 Section 2 social worker amended 7 August 2020 section 135 Public Service Act 2020 Section 2 social worker amended 14 July 2017 section 149 Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017 Section 2 social worker amended 1 October 1999 section 13 Department of Child, Youth and Family Services Act 1999 Section 2 trustee corporation amended 1 July 2009 section 30(2)﻿(a) Māori Trustee Amendment Act 2009 Section 2 trustee corporation amended 1 March 2002 section 170(1) Public Trust Act 2001
3: Act binds the Crown
This Act shall bind the Crown.
4: Legal capacity of persons subject to orders under this Act
Except as provided by or under this Act or any other enactment, the rights, privileges, powers, capacities, duties, and liabilities of any person subject to an order under this Act whether in a personal, official, representative, or fiduciary capacity, shall, for all the purposes of the law of New Zealand (whether substantive, procedural, evidential, or otherwise), be the same as those of any other person.
4A: Transitional, savings, and related provisions
The transitional, savings, and related provisions set out in Schedule 1AA Section 4A inserted 14 November 2018 section 152 Courts Matters Act 2018
1: Personal rights
5: Presumption of competence
For the purposes of this Part, every person shall be presumed, until the contrary is proved, to have the capacity—
a: to understand the nature, and to foresee the consequences, of decisions in respect of matters relating to his or her personal care and welfare; and
b: to communicate decisions in respect of those matters.
6: Jurisdiction of court under this Part
1: Subject to subsection (2), a court shall have jurisdiction under this Part in respect of any person who is ordinarily resident in New Zealand and who—
a: lacks, wholly or partly, the capacity to understand the nature, and to foresee the consequences, of decisions in respect of matters relating to his or her personal care and welfare; or
b: has the capacity to understand the nature, and to foresee the consequences, of decisions in respect of matters relating to his or her personal care and welfare, but wholly lacks the capacity to communicate decisions in respect of such matters.
2: Subject to section 12(3)
a: is not, and never has been, married or in a civil union; or
b: is 16 years old or older and is not living, and never has lived, with another person as a de facto partner.
3: The fact that the person in respect of whom the application is made for the exercise of the court's jurisdiction has made or is intending to make any decision that a person exercising ordinary prudence would not have made or would not make given the same circumstances is not in itself sufficient ground for the exercise of that jurisdiction by the court. Section 6(2) substituted 1 July 2005 section 151 Care of Children Act 2004
7: Persons who may apply for exercise of court's jurisdiction
Any 1 or more of the following persons may apply to a court for the exercise of its jurisdiction under this Part:
a: a person who seeks the exercise of the court's jurisdiction in respect of himself or herself:
b: a relative or an attorney of the person in respect of whom the application is made:
c: a social worker:
d: a medical practitioner:
e: a representative of any group that is engaged, otherwise than for commercial gain, in the provision of services and facilities for the welfare of persons in relation to whom the court has jurisdiction in accordance with section 6
f: where the exercise of the court's jurisdiction is sought in respect of any person who is a patient or a resident in any place that provides hospital care, rest home care, or residential disability care within the meaning of the Health and Disability Services (Safety) Act 2001
g: where the exercise of the court's jurisdiction is sought in respect of any person subject to a property order, the manager of that person's property:
h: any other person, with leave of the court. Section 7(f) substituted 25 September 2008 section 4 Protection of Personal and Property Rights Amendment Act 2007
8: Primary objectives of court in exercise of jurisdiction under this Part
The primary objectives of a court on an application for the exercise of its jurisdiction under this Part shall be as follows:
a: to make the least restrictive intervention possible in the life of the person in respect of whom the application is made, having regard to the degree of that person's incapacity:
b: to enable or encourage that person to exercise and develop such capacity as he or she has to the greatest extent possible.
9: Course to be followed by court
1: In considering an application for the exercise of its jurisdiction under this Part, a court shall determine whether or not the person in respect of whom the application is made is a person in relation to whom it has jurisdiction under this Part in accordance with section 6
2: If the court is satisfied that the person in respect of whom the application is made is a person in relation to whom it has jurisdiction under this Part in accordance with section 6 section 10 section 11 section 12 section 8
10: Kinds of order
1: On an application for the exercise of a court's jurisdiction under this Part in respect of any person, the court may
a:
b: an order that any parent of the person make suitable arrangements for the personal care of the person after the parent's death:
c: an order that the arrangements made by any parent of the person for the personal care of the person after the parent's death be observed, or be varied in any particular specified in the order:
d: an order that the person shall enter, attend at, or leave an institution specified in the order, not being a psychiatric hospital or a licensed institution under the Mental Health Act 1969
e: an order that the person be provided with living arrangements of a kind specified in the order:
f: an order that the person be provided with medical advice or treatment of a kind specified in the order:
g: an order that the person be provided with educational, rehabilitative, therapeutic, or other services of a kind specified in the order:
h: an order that the person shall not leave New Zealand without the permission of the court, or shall leave New Zealand only on conditions specified in the order:
i: an order appointing a person named in the order as next friend or guardian ad litem the District Court or the Family Court
j: an order under section 11
k: an order under section 12
1A: Subsection (1) is subject to subsections (2) and (2B).
2: No person (other than the person in respect of whom the application is made) shall be bound by a personal order unless that person is a party to the proceedings in which the order is made.
2A: No order under section 10(1)﻿(i) may be applied for by any person, or made by the court, solely for the purpose of the commencement of proceedings under the Family Violence Act 2018
2B: Subsection (2A) overrides any contrary provisions of this Act.
3: In any order made under any of paragraphs (a) to (i) of subsection (1), the court may specify a date by which the order is to be reviewed by the court; and, if it does so, the court shall also specify in the order the person or persons who is or are to be responsible for applying to the court for a review of the order before the specified date.
4: Where a court makes any personal order, it may also make such other orders and give such directions as may be necessary or expedient to give effect, or better effect, to the personal order. Section 10(1) amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 10(1)﻿(a) repealed 28 March 2007 section 11 Disabled Persons Employment Promotion Repeal Act 2007 Section 10(1)﻿(i) amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 10(1)﻿(i) amended 1 March 2017 section 261 District Court Act 2016 Section 10(1A) inserted 1 July 2019 section 259(1) Family Violence Act 2018 Section 10(2A) inserted 1 July 2019 section 259(1) Family Violence Act 2018 Section 10(2B) inserted 1 July 2019 section 259(1) Family Violence Act 2018
11: Order to administer property
1: Where, on an application to a court for the exercise of its jurisdiction under this Part,—
a: the person in respect of whom the application is made is not subject to a property order; and
b: the court considers that the making of a property order or the giving of a direction under section 64(3) section 8
c: the court considers the making of an order under this section necessary in all the circumstances,— the court may, subject to subsection (2), by order, appoint any person (but only 1 person) named in the order to administer, on behalf of the person in respect of whom the application is made, any property or income or benefit, belonging to the person or to which that person is or may become entitled, and specified in the order.
2: No order may be made under this section in respect of either—
a: any item of property that exceeds $5,000
b: any income or benefit in excess, in any one year, of $20,000, or such other amount as is, from time to time, prescribed by Order in Council for the purposes of this paragraph.
3: Every person who administers any property, income, or benefit pursuant to an order made under this section shall do so in such a way as to enable or encourage the person for whom he or she is acting to exercise and develop such capacity as that person has to the greatest extent possible.
4: In any order made under this section, the court shall specify a date, being not later than 3 years after the date of the order, by which the person appointed to administer the property is required to apply to the court for a review of the order.
5: The provisions of subsections (3) to (7) of section 31 sections 37 43 44 49 50 section 52
6: An Order in Council under subsection (2)﻿(a) or (b) is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 11(2) substituted 28 July 1997 section 2 Protection of Personal and Property Rights Amendment Act 1997 Section 11(2)﻿(a) amended 1 August 2007 clause 3 Protection of Personal and Property Rights Order 2007 Section 11(6) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
12: Court may appoint welfare guardian
1: Subject to the succeeding provisions of this section, on an application for the exercise of a court's jurisdiction under this Part, the court may make an order appointing a welfare guardian for the person in respect of whom the application is made in relation to such aspect or aspects of the personal care and welfare of that person as the court specifies in the order.
2: A court shall not make an order under subsection (1) unless it is satisfied—
a: that the person in respect of whom the application is made wholly lacks the capacity to make or to communicate decisions relating to any particular aspect or particular aspects of the personal care and welfare of that person; and
b: that the appointment of a welfare guardian is the only satisfactory way to ensure that appropriate decisions are made relating to that particular aspect or those particular aspects of the personal care and welfare of that person.
3: A court may make an order under subsection (1) in respect of a person of the kind referred to in section 6(2)
a: no parent or guardian of that person is then living; or
b: no parent or guardian of that person is in regular contact with that person, and the court is satisfied in all the circumstances that it would be in the interests of that person to appoint a welfare guardian for that person.
4: No person under the age of 20 years, and no body corporate, shall be appointed a welfare guardian under this section.
5: A court shall not appoint any person as a welfare guardian under this section unless it is satisfied—
a: that the proposed appointee is capable of carrying out the duties of a welfare guardian in a satisfactory manner, having regard to the needs of the person in respect of whom the application is made, and the relationship between that person and the proposed appointee; and
b: that the proposed appointee will act in the best interests of the person in respect of whom the application is made; and
c: that there is unlikely to be any conflict between the interests of the proposed appointee and those of the person in respect of whom the application is made; and
d: the proposed appointee consents to the appointment.
6: The court must not appoint more than 1 welfare guardian for any person unless the court is satisfied that it would be in the best interests of the person to do so.
6A: If the court appoints more than 1 welfare guardian for the same person, those welfare guardians must regularly consult each other.
7: So far as is practicable in the circumstances, a court shall ascertain the wishes of the person in respect of whom the application is made when determining whom to appoint as welfare guardian under this section.
8: In any order under this section, the court shall specify a date, being not later than 3 years after the date of the order, by which the welfare guardian is required to apply to the court for a review of the order. Section 12(3) amended 26 April 2005 section 7 Relationships (Statutory References) Act 2005 Section 12(6) replaced 14 November 2018 section 153 Courts Matters Act 2018 Section 12(6A) inserted 14 November 2018 section 153 Courts Matters Act 2018
13: Court may make recommendations instead of order
1: On an application for the exercise of a court's jurisdiction under this Part, the court may, instead of making any order under sections 10 to 12
2: In any case to which subsection (1) applies, the court shall formally dismiss the application but shall reserve leave to the parties and the person in respect of whom the application is made to apply to the court for directions relating to the implementation of any of the court's recommendations.
3: No recommendation made under this section shall be binding on any person.
14: Interim orders
1: On an application to a court for the exercise of its jurisdiction under this Part, the court may, either on the motion of the applicant or of its own motion, make an interim order under section 10 section 11 section 12
2: Every party to the application, and the person in respect of whom the application is made, shall be given notice of any interim order made pursuant to this section, and shall be entitled to be heard on it.
3: No interim order made pursuant to this section shall continue in force for more than 6 months after the date on which it is made.
4: An interim order made pursuant to this section may be varied, discharged, or enforced in the same manner as if it were a final order of the Family Court
5: After hearing the parties, and the person in respect of whom the application is made, on any interim order made pursuant to this section, or such of them as wish to be heard, the court may—
a: make 1 but only 1 further interim order; or
b: make a final order; or
c: dismiss the application. Section 14(4) amended 1 March 2017 section 261 District Court Act 2016
15: Orders by consent
On an application for the exercise of a court's jurisdiction under this Part, the court may make any order under section 10 section 11 section 12 section 14
16: Persons subject to property order
1: Where an application for the exercise of a court's jurisdiction under this Part is made in respect of any person subject to a property order, any order made by the court under section 10 section 12 section 14 Part 4
2: In any case to which subsection (1) applies, the manager may apply to a court for the variation, suspension, or discharge of the personal order, or for directions relating to its implementation.
17: Expiry of orders
1: Except as provided in subsections (2) and (3), a personal order shall expire—
a: on the date, or at the close of the period, specified in that behalf by the court in the order; or
b: if no such provision is made in the order,—
i: on the expiry of a period of 12 months beginning with the date of the order; or
ii: when the effect of the order is spent,— whichever is the earlier.
2: Subject to subsection (3), every personal order in which provision is made for the review of the order before a specified date shall expire on that date unless, on a review of the order, the court decides that it should continue beyond that date.
3: Where, in any case to which subsection (2) applies, an application for a review of the order is made but not determined before the specified date, the order shall remain in force pending the determination of the application.
2: Welfare guardians
18: Powers and duties of welfare guardian
1: No court shall empower a welfare guardian, and no welfare guardian shall have power,—
a: to make any decision relating to the entering into marriage or civil union or civil union
b: to make any decision relating to the adoption of any child of that person; or
c: to refuse consent to the administering to that person of any standard medical treatment or procedure intended to save that person's life or to prevent serious damage to that person's health; or
d: to consent to the administering to that person of electro-convulsive treatment; or
e: to consent to the performance on that person of any surgery or other treatment designed to destroy any part of the brain or any brain function for the purpose of changing that person's behaviour; or
f: to consent to that person's taking part in any medical experiment other than one to be conducted for the purpose of saving that person's life or of preventing serious damage to that person's health; or
g: to request, on behalf of the person, the option of receiving assisted dying under the End of Life Choice Act 2019
2: Subject to subsection (1), a welfare guardian shall have all such powers as may be reasonably required to enable the welfare guardian to make and implement decisions for the person for whom the welfare guardian is acting in respect of each aspect specified by the court in the order by which the appointment of the welfare guardian is made.
3: In exercising those powers, the first and paramount consideration of a welfare guardian shall be the promotion and protection of the welfare and best interests of the person for whom the welfare guardian is acting, while seeking at all times to encourage that person to develop and exercise such capacity as that person has to understand the nature and foresee the consequences of decisions relating to the personal care and welfare of that person, and to communicate such decisions.
4: Without limiting the generality of subsection (3), a welfare guardian shall—
a: encourage the person for whom the welfare guardian is acting to act on his or her own behalf to the greatest extent possible; and
b: seek to facilitate the integration of the person for whom the welfare guardian is acting into the community to the greatest extent possible; and
c: consult, so far as may be practicable,—
i: the person for whom the welfare guardian is acting; and
ii: such other persons, as are, in the opinion of the welfare guardian, interested in the welfare of the person and competent to advise the welfare guardian in relation to the personal care and welfare of that person; and
iii: a representative of any group that is engaged, otherwise than for commercial gain, in the provision of services and facilities for the welfare of persons in respect of whom the court has jurisdiction in accordance with section 6
5: In addition to subsection (4)﻿(c), where the person for whom the welfare guardian is acting is subject to a property order, the welfare guardian shall consult on a regular basis with the manager of that person's property to ensure that the interests of that person are not prejudiced through any breakdown in communication between the welfare guardian and the manager.
6: A welfare guardian may apply to a court for directions relating to the exercise of the powers of the welfare guardian, and the court may give such directions as it thinks fit. Section 18(1)﻿(a) amended 26 April 2005 section 7 Relationships (Statutory References) Act 2005 Section 18(1)﻿(g) inserted 6 November 2021 section 41 End of Life Choice Act 2019
19: Effect of welfare guardian's decisions, etc
1: Every decision made by a welfare guardian in the exercise of the powers conferred by or under this Part, and everything done by a welfare guardian in implementation of any such decision, shall have the same effect as it would have had if it had been made or done by the person for whom the welfare guardian is acting and that person had had full capacity to make or do it.
2: No person dealing with a welfare guardian in respect of any matter within the powers of the welfare guardian shall be concerned to inquire as to the concurrence or otherwise of the person for whom the welfare guardian is acting or of any other person, or be affected by notice that any such person has not concurred.
20: Liability of welfare guardian
1: Subject to subsection (2), no action shall lie against a welfare guardian in respect of anything done or omitted to be done by the welfare guardian in the exercise of the powers conferred by or under this Act, unless it is shown that the welfare guardian acted in bad faith or without reasonable care.
2: A welfare guardian shall be personally liable in respect of any contract or arrangement entered into with, or liability incurred to, any person if the welfare guardian does not, before entering into the contract or arrangement or incurring the liability, disclose to that person that the welfare guardian is acting in that capacity.
21: Welfare guardian's expenses
1: Subject to any order of a court made under subsection (2), all expenses reasonably incurred by a welfare guardian in the exercise of the powers and duties conferred by or under this Act shall be charged against, and payable out of, the property of the person for whom the welfare guardian is acting.
2: A court may order that any expenses incurred or to be incurred by a welfare guardian in the exercise of the powers and duties conferred by or under this Act shall be met, in whole or in part, out of a Crown Bank Account Section 21(2) amended 25 January 2005 section 83(7) Public Finance Act 1989
22: When welfare guardian ceases to hold office
A welfare guardian shall cease to hold office—
a: if the person for whom the welfare guardian is acting dies; or
b: if the welfare guardian dies or is adjudged bankrupt or becomes a special patient or a committed patient under the Mental Health Act 1969
c: if the personal order by which the welfare guardian was appointed expires in accordance with section 17 section 86
23: Appointment of welfare guardian in event of non-compliance
1: Where any person is required by a personal order to do anything and that person fails to comply with any of the requirements of the order, any party to the proceedings in which the order was made, or the person in respect of whom the order was made, may apply to a court for the appointment of a welfare guardian.
2: The function of a welfare guardian appointed under this section shall be to take all reasonable steps to ensure compliance with the order of the court by the person who has so far failed to comply with it.
3: A court, on appointing a welfare guardian under this section, shall specify in the order by which the appointment is made the date on which the welfare guardian is to cease to act; and on that date the order shall expire.
4: Subject to the preceding provisions of this section, the provisions of sections 19 to 22 section 12
3: Property rights
24: Presumption of competence
For the purposes of this Part, every person shall be presumed, until the contrary is proved, to be competent to manage his or her own affairs in relation to his or her property.
25: Jurisdiction of court under this Part
1: A court shall have jurisdiction under this Part in respect of any property owned by any person—
a: who is domiciled or is ordinarily resident in New Zealand; and
b: who, in the opinion of the court, lacks wholly or partly the competence to manage his or her own affairs in relation to his or her property.
2: A court shall also have jurisdiction under this Part in respect of any property situated in New Zealand and owned by any person—
a: who is not domiciled nor is ordinarily resident in New Zealand; and
b: who, in the opinion of the court, lacks wholly or partly the competence to manage his or her own affairs in relation to his or her property so situated.
3: The fact that the person in respect of whom an application is made for the exercise of the court's jurisdiction is managing or is intending to manage his or her own affairs in relation to his or her property in a manner that a person of ordinary prudence would not adopt given the same circumstances is not in itself sufficient ground for the exercise of that jurisdiction by the court.
4: In determining whether or not it should exercise its jurisdiction under this Part in relation to any person, a court may have regard to the degree to which the person is subject, or is liable to be subjected, to undue influence in the management of his or her own affairs in relation to his or her property.
26: Persons who may apply for exercise of court's jurisdiction
Any 1 or more of the following persons may apply to a court for the exercise of its jurisdiction under this Part:
a: a person who seeks the exercise of the court's jurisdiction in respect of himself or herself:
b: a relative or an attorney of the person in respect of whom the application is made:
c: a social worker:
d: a medical practitioner:
e: a trustee corporation:
f: a representative of any group that is engaged, otherwise than for commercial gain, in the provision of services and facilities for the welfare of persons in relation to whom the court has jurisdiction under this Act in accordance with section 25
g: where the exercise of the court's jurisdiction is sought in respect of any person who is a patient or a resident in any place that provides hospital care, rest home care, or residential disability care within the meaning of the Health and Disability Services (Safety) Act 2001
h: where a welfare guardian has been appointed for the person in respect of whom the application is made, that welfare guardian:
i: any other person, with leave of the court. Section 26(g) substituted 25 September 2008 section 5 Protection of Personal and Property Rights Amendment Act 2007
27: Need for application in respect of hospital patient, etc, may be investigated
1: Where—
a: any person is or has been admitted to any hospital, home, or other institution as a patient or resident; and
b: the superintendent, licensee, supervisor, or other person in charge of the hospital, home, or other institution considers—
i: that the patient or resident may be a person in relation to whom a court has jurisdiction under this Part; and
ii: that it may be desirable in the interests of the patient or resident that a manager be appointed under this Part in respect of any property owned by the patient or resident,— the superintendent, licensee, supervisor, or other person in charge may give notice of the case to the Registrar of the court.
2: On receiving any notice under subsection (1), the Registrar may refer the matter to a trustee corporation with a request that the corporation investigate the case and report to the Registrar on—
a: whether any person described in section 26 section 25 section 32 section 33
b: if no such person is intending to make such an application, whether the trustee corporation considers that such an application would be desirable in the interests of the patient.
3: If the trustee corporation—
a: finds that no person described in section 26
b: considers that the making of such an application would be desirable in the interest of the patient; and
c: does not intend to make such an application itself,— the trustee corporation may report accordingly to the Registrar.
4: On receiving a report under subsection (3), the Registrar shall refer the matter to a Judge who may give to the Registrar all such directions as the Judge considers appropriate to have the matter drawn to the attention of such person or persons described in section 26
28: Primary objectives of court in exercise of jurisdiction under this Part
The primary objectives of a court on an application for the exercise of its jurisdiction under this Part shall be as follows:
a: to make the least restrictive intervention possible in the management of the affairs of the person in respect of whom the application is made in relation to his or her property, having regard to the degree of that person's lack of competence:
b: to enable or encourage that person to exercise and develop such competence as he or she has to manage his or her own affairs in relation to his or her property to the greatest extent possible.
29: Course to be followed by court
1: In considering an application for the exercise of its jurisdiction under this Part, a court shall determine whether or not the person in respect of whom the application is made is a person in relation to whom it has jurisdiction under this Part in accordance with section 25
2: If the court is satisfied that the person in respect of whom the application is made is a person in relation to whom it has jurisdiction under this Part in accordance with section 25 section 31 section 28
3: If the court decides to make an order under section 31 Schedule 1
30: Temporary orders
1: Where a court is satisfied—
a: that an application for the exercise of its jurisdiction under this Part has been made or is to be made in relation to any person; and
b: that there are reasonable grounds for believing that that person may be a person in relation to whom a court has jurisdiction under this Part in accordance with section 25
c: that it is in the best interests of that person that urgent provision be made for the protection of his or her property or any part of it pending the final determination of the application for the exercise of the court's jurisdiction,— the court may make a temporary order under this section.
2: A temporary order may be made on the application of any person specified in section 26
3: It shall not be necessary to serve a copy of an application for a temporary order on the person in respect of whom the order is sought, nor shall that person be entitled to attend, or be heard, or call or cross-examine witnesses in respect of the application, unless the court otherwise orders.
4: Nothing in sections 66 to 73
5: If a court makes a temporary order, it shall appoint as temporary manager such fit and proper person (being a person who would be eligible for appointment as manager under section 31
6: Where a court decides to make a temporary order, sections 16 31 35 to 53 57
7: No temporary order made pursuant to this section shall continue in force for more than 3 months after the date on which it is made.
8: A temporary order made pursuant to this section may be varied, discharged, or enforced in the same manner as if it were a final order of the Family Court Section 30(8) amended 1 March 2017 section 261 District Court Act 2016
31: Appointment of manager
1: Subject to the succeeding provisions of this section and to sections 31A 31B
2: Where the court appoints 2 or more managers, their responsibility shall be jointly held, unless the court orders otherwise.
3: No person under the age of 20 years, and no body corporate other than a trustee corporation, shall be appointed a manager under this section.
4: Where the person in respect of whom the application for the exercise of the court's jurisdiction is made is a patient or resident of a hospital, home, or other institution, the superintendent, licensee, supervisor, or other person in charge of the hospital, home, or other institution shall not be appointed a manager under this section.
5: The court shall not appoint any person a manager under this section unless it is satisfied—
a: that the proposed appointee is capable of carrying out the duties of a manager in a satisfactory manner, having regard to the needs of the person in respect of whom the application is made, and the relationship between that person and the proposed appointee; and
b: that the proposed appointee will act in the best interests of the person in respect of whom the application is made; and
c: the proposed appointee consents to the appointment.
6: In determining whom to appoint as manager under this section, a court shall take into account any likely conflict between the interests of the proposed appointee and those of the person in respect of whom the application is made.
7: So far as is practicable in the circumstances, a court shall ascertain the wishes of the person in respect of whom the application is made when determining whom to appoint as manager under this section.
8: In any order made under this section, the court shall specify a date, being not later than 3 years after the date of the order, by which the manager is required to apply to the court for a review of the order. Section 31(1) amended 1 July 1993 section 362(1) Te Ture Whenua Maori Act 1993
31A: Kai tiaki trusts
Where a kai tiaki trust is constituted under section 217 Part 12 section 31 section 32(3) section 33(4) Section 31A inserted 1 July 1993 section 362(1) Te Ture Whenua Maori Act 1993
31B: Maori land or shares in Maori incorporation
1: Where it appears to the Family Court
a: beneficial interests in Maori freehold land (as defined in section 4
b: shares in a Maori incorporation (as defined in section 246 the court shall refer that application to the Maori Land Court.
2: Where an application is referred to the Maori Land Court under subsection (1), the Maori Land Court shall treat that application, to the extent that it relates to beneficial interests in Maori freehold land or shares in a Maori incorporation or both, as if it were an application under section 217
3: Where the Maori Land Court constitutes a kai tiaki trust in respect of any beneficial interests in Maori freehold land or shares in a Maori incorporation,—
a: no order shall be made under section 31
b: no trustee corporation shall, under section 32(3) section 33(4) section 33 or section 34
4: Where the Maori Land Court, after considering an application referred to that court under subsection (1), declines to constitute a kai tiaki trust in respect of any beneficial interests in Maori freehold land or any shares in a Maori incorporation to which that application relates, the Family Court
a: make a property order under section 31
b: otherwise exercise its jurisdiction under this Part in respect of those interests or shares or any of them. Section 31B inserted 1 July 1993 section 362(1) Te Ture Whenua Maori Act 1993 Section 31B(1) amended 1 March 2017 section 261 District Court Act 2016 Section 31B(4) amended 1 March 2017 section 261 District Court Act 2016
32: Application to trustee corporation to act as manager
1: Any person who—
a: has attained the age of 18 years; and
b: is domiciled or is ordinarily resident in New Zealand; and
c: considers that he or she lacks wholly or partly the competence to manage his or her own affairs in relation to his or her property,— may apply in accordance with the succeeding provisions of this section to a trustee corporation to act as manager of that person's property or of any part of it.
2: Every application under this section shall be in writing, and shall—
a: contain particulars of the person's lack of competence to manage his or her own affairs in relation to his or her property; and
b: specify the property of the applicant, and the rights and powers in respect of that property, of which the applicant wishes the trustee corporation to assume control; and
c: be accompanied by—
i: certificates from 2 medical practitioners (at least 1 of whom must be independent of the applicant, or a relative of the applicant) as to the extent of the applicant's lack of competence to manage his or her own affairs in relation to his or her property; and
ii: a statutory declaration by the applicant that the applicant has received independent legal advice about, and understands the nature, purpose, and consequences of, the application and the applicant's right under section 34(c)
d: be made to the trustee corporation within 30 days after the date of the earlier of the 2 medical certificates referred to in paragraph (c)﻿(i), or of the date of the statutory declaration referred to in paragraph (c)﻿(ii), whichever is the earlier.
3: If the trustee corporation is satisfied that—
a: the applicant is not wholly competent to manage his or her own affairs in relation to his or her property; and
b: it is in the best interests of that person that a manager act for that person; and
c: the applicant seeks to have the trustee corporation assume control of the property of the applicant, and of the applicant's rights and powers in respect of that property (as specified in the application) only to the extent necessary having regard to the degree of the applicant's lack of competence,— the trustee corporation may accept the application and file a copy of it with a court within 30 days after the making of the application.
4: The trustee corporation shall make such inquiries and obtain such reports as it thinks necessary for the purposes of subsection (3).
5: On the filing of a copy of an application under subsection (3), the trustee corporation shall become the manager of the property specified in the application and shall have and may exercise in respect of that property the rights and powers specified in the application. Section 32(2)﻿(c)﻿(i) substituted 18 September 2004 section 175(1) Health Practitioners Competence Assurance Act 2003
33: Application to trustee corporation in respect of small estates
1: A person who may apply for an order under any of paragraphs (b) to (d) and (f) to (h) of section 26 or such other amount as is, from time to time, prescribed by Order in Council for the purposes of this subsection
2: No application may be made under subsection (1) in relation to any property in respect of which a court does not have jurisdiction under this Part.
3: Every application under this section shall be in writing, and shall—
a: contain particulars of the person's lack of competence to manage his or her own affairs in relation to his or her property; and
b: specify the property of the person in respect of whom the application is made, and the rights and powers in respect of that property, of which the applicant wishes the trustee corporation to assume control; and
c: be accompanied by certificates from 2 medical practitioners (at least 1 of whom must be independent of the applicant and the person in respect of whom the application is made) as to whether or not that person—
i: lacks the competence to manage his or her own affairs in relation to his or her property, and, if so, to what extent; and
ii: is able to understand the nature, purpose, and consequences of the application; and
d: where a certificate referred to in paragraph (c) indicates that the person in respect of whom the application is made is able to understand the nature, purpose, and consequences of the application, be accompanied by a statutory declaration by the person that he or she has received independent legal advice about, and understands the nature, purpose, and consequences of, the application and that person's right under section 34(c)
e: be made to the trustee corporation within 30 days after the date of the earlier of the 2 medical certificates referred to in paragraph (c) or of the date of any statutory declaration referred to in paragraph (d), whichever is the earlier.
4: If the trustee corporation is satisfied that—
a: the person in respect of whom the application is made is not wholly competent to manage his or her own affairs in relation to his or her property; and
b: it is in the best interests of that person that a manager act for that person; and
c: the applicant seeks to have the trustee corporation assume control of the property of that person, and of that person's rights and powers in respect of that property (as specified in the application) only to the extent necessary having regard to the degree of that person's lack of competence,— the trustee corporation may accept the application and file a copy of it with a court within 30 days after the making of the application.
5: The trustee corporation shall make such inquiries and obtain such reports as it thinks necessary for the purposes of subsection (4).
6: On the filing of a copy of an application under subsection (4), the trustee corporation shall become the manager of the property specified in the application and shall have and may exercise in respect of that property the rights and powers specified in the application.
7: If, after filing a copy of an application under subsection (6), the gross value of the person's property is found to exceed $120,000 or such other amount as is, from time to time, prescribed by Order in Council for the purposes of this subsection
8: An Order in Council under subsection (1) or (7) is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 33(1) amended 28 July 1997 section 3(1) Protection of Personal and Property Rights Amendment Act 1997 Section 33(3)﻿(c) substituted 18 September 2004 section 175(1) Health Practitioners Competence Assurance Act 2003 Section 33(7) amended 28 July 1997 section 3(2) Protection of Personal and Property Rights Amendment Act 1997 Section 33(8) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
34: When a person ceases to be subject to property order
1: A person shall cease to be subject to a property order where—
a: the person dies; or
b: the court discharges the property order under section 87
c: in any case where a trustee corporation is acting as manager pursuant to section 32 section 33
2: Where—
a: a trustee corporation is acting as manager pursuant to section 32 section 33
b: the trustee corporation receives from the person for whom it is so acting a notice of a kind referred to in subsection (1)﻿(c); and
c: the trustee corporation knows that a welfare guardian or an attorney is acting for that person,— the trustee corporation shall inform the welfare guardian or attorney of the receipt of the notice.
4: Managers
35: Property not to vest in manager
The property of a person subject to a property order shall not vest in the manager, but the manager shall be entitled to the possession and management of so much of the property as the order applies to in accordance with the succeeding provisions of this Part.
36: Functions and duties of manager
1: In managing any property under this Act, the first and paramount consideration of a manager shall be to use the property in the promotion and protection of the best interests of the person for whom the manager is acting, while seeking at all times to encourage that person to develop and exercise such competence as that person has to manage his or her own affairs in relation to his or her property.
2: Without limiting the generality of subsection (1), so far as is practicable in the circumstances and to encourage the person for whom the manager is acting to develop and exercise such competence as that person has to manage his or her own affairs in relation to his or her property, the manager may allow that person to have control of and deal with any part of the property.
37: Security for performance of manager's duties
1: A court may, if it thinks fit, require any manager (other than a trustee corporation), upon appointment or at any time thereafter, to give such security to Public Trust
2: The security may be a bond, with or without a surety or sureties, or such other security as the court directs and approves.
3: A court may at any time, on the application of Public Trust Public Trust
4: A court may at any time give leave to Public Trust Public Trust
5: All money so received by Public Trust Public Trust
6: Public Trust ex parte Section 37(1) amended 1 March 2002 section 170(1) Public Trust Act 2001 Section 37(3) amended 1 March 2002 section 170(1) Public Trust Act 2001 Section 37(4) amended 1 March 2002 section 170(1) Public Trust Act 2001 Section 37(5) amended 1 March 2002 section 170(1) Public Trust Act 2001 Section 37(6) amended 1 March 2002 section 170(1) Public Trust Act 2001
38: Powers of manager
1: A manager shall have all such rights and powers as the court may confer on the manager in the property order, subject to any restrictions specified by the court in the order.
2: A manager of the property of a person subject to a property order may apply to a court for directions relating to the exercise of any of the manager's rights and powers.
3: Where a manager is, in accordance with this Act, authorised to make an application under section 87 Section 38(3) added 1 July 1994 Protection of Personal and Property Rights Amendment Act 1994 Section 38(3) amended 12 November 2018 section 250 Land Transfer Act 2017
39: Additional powers where
Public Trust For the purpose of enabling Public Trust Public Trust Public Trust Public Trust Public Trust's clause 1 Section 39 heading amended 1 March 2002 section 170(1) Public Trust Act 2001 Section 39 amended 1 March 2002 section 170(1) Public Trust Act 2001
40: Application of Public Trust Act 2001
1: The management of the property of a person subject to a property order in respect of which Public Trust Public Trust Public Trust Act 2001
2: All expenses incurred by Public Trust Public Trust remuneration and amounts in accordance with Public Trust's scale of charges
3: All such expenses, commissions, and other charges shall be payable out of the estate of the person subject to a property order notwithstanding that the person dies or his or her property otherwise ceases to be under the management of Public Trust Section 40 heading amended 1 March 2002 section 170(1) Public Trust Act 2001 Section 40(1) amended 1 March 2002 section 170(1) Public Trust Act 2001 Section 40(2) amended 1 March 2002 section 170(1) Public Trust Act 2001 Section 40(3) amended 1 March 2002 section 170(1) Public Trust Act 2001
41: Application of Maori Trustee Act 1953
1: The management of the property of a person subject to a property order in respect of which the Māori Trustee the Māori Trustee Maori Trustee Act 1953
2: All expenses incurred by the Māori Trustee Māori Trustee section 48
3: All such expenses, commissions, and other charges shall be payable out of the estate of the person subject to a property order notwithstanding that the person dies or his or her property otherwise ceases to be under the management of the Māori Trustee Section 41(1) amended 1 July 2009 section 30(1) Māori Trustee Amendment Act 2009 Section 41(2) amended 1 July 2009 section 30(1) Māori Trustee Amendment Act 2009 Section 41(3) amended 1 July 2009 section 30(1) Māori Trustee Amendment Act 2009
42: Manager's powers subject to provisions of personal order
Where a property order is made in respect of any person subject to a personal order, the exercise by the manager of the rights and powers conferred by or under this Part shall be subject to the terms of the personal order.
43: Manager's duty to consult
1: In the management of the property of a person subject to a property order, the manager shall, as far as it may be practicable, consult—
a: the person for whom the manager is acting; and
b: such other persons, as are, in the opinion of the manager, interested in the welfare of the person and competent to advise the manager in relation to the management of the person's property; and
c: a representative of any group that is engaged, otherwise than for commercial gain, in the provision of services and facilities for the welfare of persons in respect of whose property the court has jurisdiction in accordance with section 25
2: The manager may follow any advice given to the manager by the person for whom the manager is acting or by any other person referred to in subsection (1), and shall not be liable for anything done or omitted by the manager in following that advice, unless done or omitted in bad faith or without reasonable care.
3: In any case where the manager is of the opinion that any such advice conflicts with his or her duty as manager or with any rule of law or would or may expose the manager to liability or is otherwise objectionable, or in any case where conflicting advice is given to the manager, the manager may apply to a court for directions in the matter, and shall not incur any liability in respect of anything done or omitted to be done in accordance with any such directions.
4: In any case to which subsection (3) applies, the court may make such order as to costs as it thinks fit.
5: Nothing in subsection (3) shall oblige the manager to apply to a court for directions.
6: Without limiting any of the foregoing provisions of this section, where a welfare guardian has been appointed for the person for whom the manager is acting, the manager shall consult on a regular basis with that welfare guardian to ensure that the interests of the person for whom they are acting are not prejudiced through any breakdown in communication between the manager and the welfare guardian.
44: Effect of manager's decisions, etc
1: Every decision made by a manager in the exercise of the powers conferred by or under this Part, and everything done by a manager in implementation of any such decision, shall have the same effect as it would have had if it had been made or done by the person for whom the manager is acting and that person had had full capacity to make or do it.
2: Without limiting the generality of subsection (1), any contract, agreement, or other arrangement made or entered into by the manager in relation to any property of which he or she is the manager may be enforced in respect of the property, by proceedings (where necessary) brought against the manager in his or her capacity as manager, in the same manner and to the same extent as it could have been enforced if it had been made or entered into by the person for whom the manager is acting and that person had been fully competent to make or enter into it.
3: No person dealing with a manager in respect of any matter within the powers of a manager shall be concerned to inquire as to the concurrence or otherwise of the person for whom the manager is acting or of any other person or be affected by notice that the person or any other person has not concurred.
45: Statements required
1: For the purposes of this section the term year
2: Every manager shall prepare a statement, in the prescribed form and containing the prescribed particulars, and file it in a court together with 2 copies (or together with only 1 copy if, under section 46(1) section 63(2)
a: within 3 months after the date of the commencement of his or her managership, a statement of the property, as at that date, of the person for whom the manager is acting:
b: within 30 days after the expiry of each year during which his or her managership continues, a statement relating to the property, as at the expiry of that year, of the person for whom the manager is acting and to the management of that property by the manager during that year:
c: within 30 days after the date on which the manager ceases in accordance with section 52
2A: Notwithstanding anything in subsections (1) and (2)﻿(b), the court may specify both the period of 12 months that, in relation to any managership, is to constitute a year for the purposes of any statement required to be filed under subsection (2)﻿(b) and the transitional arrangements that, in relation to statements required to be filed under subsection (2)﻿(b), are to apply in relation to a change of balance date.
3: Every manager commits an offence and is liable upon conviction
4: Every manager commits an offence and is liable on Section 45(2) amended 14 November 2018 section 154 Courts Matters Act 2018 Section 45(2A) inserted 1 July 1994 Protection of Personal and Property Rights Amendment Act 1994 Section 45(3) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 45(4) amended 1 July 2013 section 413 Criminal Procedure Act 2011
46: Statement to be examined by or on behalf of
Public Trust
1: Where any statement is filed in a court under section 45 Public Trust and (except where the court has previously dispensed with service under section 63(2)
2: Public Trust qualified auditor Public Trust Public Trust
3: A report under subsection (2) shall be filed with the court, and a copy of the report shall be given to the manager who filed the statement.
4: Public Trust qualified auditor Public Trust
5: If any person having the custody or control of any books, accounts, vouchers, securities, or other documents to which Public Trust qualified auditor Public Trust Public Trust qualified auditor Public Trust qualified auditor
6: The remuneration and expenses of Public Trust qualified auditor Public Trust
7: All expenses and costs for which the property of a person subject to a property order is liable under this section shall be a charge on that property, and that charge may be enforced in such manner as the court directs.
8: Public Trust qualified auditor Public Trust
9: In this section, qualified auditor section 35 Section 46 heading amended 1 March 2002 section 170(1) Public Trust Act 2001 Section 46(1) amended 14 November 2018 section 155 Courts Matters Act 2018 Section 46(1) amended 1 March 2002 section 170(1) Public Trust Act 2001 Section 46(2) amended 1 July 2015 section 17 Financial Reporting Amendment Act 2014 Section 46(2) amended 1 March 2002 section 170(1) Public Trust Act 2001 Section 46(4) amended 1 July 2015 section 17 Financial Reporting Amendment Act 2014 Section 46(4) amended 1 March 2002 section 170(1) Public Trust Act 2001 Section 46(5) amended 1 July 2015 section 17 Financial Reporting Amendment Act 2014 Section 46(5) amended 1 March 2002 section 170(1) Public Trust Act 2001 Section 46(6) amended 1 July 2015 section 17 Financial Reporting Amendment Act 2014 Section 46(6) amended 1 March 2002 section 170(1) Public Trust Act 2001 Section 46(8) amended 1 July 2015 section 17 Financial Reporting Amendment Act 2014 Section 46(8) amended 1 March 2002 section 170(1) Public Trust Act 2001 Section 46(9) inserted 1 July 2015 section 17 Financial Reporting Amendment Act 2014
47: Inspection and copying of statements and reports by leave
Any person may, by leave of the court or of the Registrar, inspect or make a copy of the whole or any part of any statement or report filed in a court under section 45 section 46
48: Enforcement of manager's duty to prepare and file statements
1: Where a manager fails to file a statement in a court when required to do so by section 45(2) who must, unless the Judge considers it inappropriate to do so, make an order
2: An order made under subsection (1) may provide that all costs of and incidental to the application shall be borne by the manager.
3: Nothing in this section shall limit or affect section 45(4) Section 48(1) amended 14 November 2018 section 156 Courts Matters Act 2018
49: Liability of manager
1: Subject to subsection (2), no action shall lie against a manager in respect of anything done or omitted to be done by the manager in the exercise of the powers conferred by or under this Act, unless it is shown that the manager acted in bad faith or without reasonable care.
2: A manager shall be personally liable in respect of any contract or arrangement entered into with, or liability incurred to, any person if the manager does not, before entering into the contract or arrangement or incurring the liability, disclose to that person that the manager is acting in that capacity.
50: Expenses of management and remuneration of managers
1: All expenses properly incurred by a manager under this Part shall be charged against and payable out of the property of the person for whom the manager is acting.
2: Except as provided by any other Act, no manager shall be entitled to remuneration for his or her services unless a court otherwise directs, either in the property order or by a subsequent order.
3: All such expenses, remuneration, and other charges shall be payable out of the property of the person for whom the manager is acting, although the person dies or the property otherwise ceases to be under the management of the manager before such payment is made.
51: Grants to Public Trustee
Section 51 repealed 1 March 2002 section 170(1) Public Trust Act 2001
52: When manager ceases to hold office
A manager shall cease to hold office as manager under this Part—
a: if the person for whom the manager was acting dies; or
b: if the manager dies or is adjudged bankrupt or becomes a special patient or a committed patient under the Mental Health Act 1969 or becomes subject to a property order or becomes otherwise incapable of acting; or
c: unless the court otherwise orders in any case where there are 2 or more managers, if one of the other managers dies or is adjudged bankrupt or becomes a special patient or a committed patient under the Mental Health Act 1969 or becomes subject to a property order or becomes otherwise incapable of acting; or
d: if the property order is discharged by the court under section 87
e: unless the court otherwise orders, if another person is appointed as manager.
5: Powers and property of persons subject to property orders
53: Powers of persons subject to property orders
1: Subject to section 36(2)
2: Every transfer, lease, mortgage, or other disposition of property, and every contract (except for necessaries), made or entered into by a person subject to a property order who, by virtue of subsection (1) does not have the capacity to make or enter into it shall, unless it is made or entered into with the leave of a court, be avoidable by that person or by the manager acting for that person.
3: A court may give leave to any person subject to a property order to make any such transfer, lease, mortgage, or other disposition, or to enter into any such contract, if the court is satisfied that the transaction is for the person's benefit and that the person consents to it with adequate understanding of its nature.
4: A manager shall not be entitled to avoid any transaction under subsection (2) in any case where an application in writing has been made to the manager by any party to the transaction requiring the manager to decide whether or not to avoid the transaction, and the manager has, for a period of 28 days after the receipt of the application or such extended period as may be allowed by a court, failed to give to that party notice whether the manager is avoiding the transaction or not.
5: If the manager, after any such application, does not, within the period or extended period referred to in subsection (4), avoid the transaction, the manager shall be deemed to have continued it.
6: Subject to subsection (8), if any transaction is avoided under subsection (2), a court, on the application of any party to the transaction or of the manager, may make such orders as it thinks just for the purpose of adjusting the rights of the parties and of any other person who has received any property or money comprised in the transaction (not being a person who has received the property or money from a party in good faith and for valuable consideration or who claims through such a person).
7: Without limiting the generality of subsection (6), on an application under that subsection, a court may make an order for the restitution or transfer or payment by or to the person subject to a property order or the manager or any other person of any property or money, in whole or in part, or of any sum representing the value, in whole or in part, of any such property.
8: Relief under subsections (6) and (7) may be denied wholly or in part if the person from whom relief is sought received the property or money in good faith and has so altered his or her position in reliance on having received an indefeasible interest in it that, in the court's opinion, it would be inequitable to grant relief, or to grant relief in full, as the case may be.
9: For the purposes of subsection (2), the question whether goods or services are necessaries is a question of fact.
54: Testamentary powers of person subject to property order
1: Without limiting the generality of section 4
2: A court may direct that a person subject to a property order may make a testamentary disposition only by leave of the court; and, in such a case, a testamentary disposition made without the leave of the court shall be ineffective for all purposes.
3: The court may grant leave to make a testamentary disposition under subsection (2) in respect of a testamentary disposition already made or to be made.
4: The court may cause inquiries to be made as to the existence of any testamentary disposition made by a person subject to a property order before the making of the property order (whether such testamentary disposition was made before or after the passing of this Act), and may direct that any such testamentary disposition shall be deposited in the court.
5: If it appears to the court that a testamentary disposition was made when the person was unable to manage his or her own affairs in relation to his or her property, the court may cause inquiries to be made, in such manner as the court thinks fit, whether that testamentary disposition expresses the present desire and intention of the person.
6: If the court is satisfied that the testamentary disposition does not express the present desire and intention of the person, a court may, in any case where such a course is possible, cause the present desire and intention of the person to be ascertained to the court's satisfaction, and may authorise the execution by the manager under section 55
55: Court may authorise manager to make testamentary disposition for person subject to property order
1: Where the court has given a direction under section 54(2)
2: Before a court authorises a manager to execute a testamentary disposition under subsection (1), it shall settle the proposed terms of the testamentary disposition provisionally, and hear such persons who wish to be heard and whom the court is satisfied have a proper interest in the matter.
3: A testamentary disposition executed by a manager under this section may, while the person continues to lack testamentary capacity, be varied, or revoked and substituted, by another testamentary disposition authorised by the court and executed by the manager in the same manner as the original testamentary disposition.
4: Any testamentary disposition executed by a manager under this section shall be—
a: signed in the manager's name for and on behalf of the person for whom it is made, in the presence of 2 or more witnesses present at the same time; and
b: attested and subscribed by those witnesses in the presence of the manager; and
c: sealed with the seal of the court.
5: The following provisions apply to a testamentary disposition authorised and executed under this section:
a: it is valid despite—
i: section 11
ii: sections 9 10
b: it has the same effect for all purposes as it would have had if the person subject to the property order—
i: had had testamentary capacity; and
ii: had executed the testamentary disposition in the manner required by the applicable section.
6: The Law Reform (Testamentary Promises) Act 1949 Family Protection Act 1955
7: Notwithstanding paragraph (c) of subsection (4), a testamentary disposition that is signed in accordance with paragraph (a) of that subsection, and attested and subscribed in accordance with paragraph (b) of that subsection, shall be valid notwithstanding that the person to whom the testamentary disposition relates dies before it is sealed with the seal of the court so long as the terms of the testamentary disposition accord with the directions of the court.
8: A testamentary disposition authorised and executed in accordance with this section shall continue to have effect, until it is revoked, notwithstanding that the person to whom it relates has ceased to be subject to a property order. Section 55(5) substituted 1 November 2007 section 41 Wills Act 2007
56: Testamentary law otherwise unaffected
Except as provided in sections 54 55
57: Proceedings, execution, etc, not to proceed without leave of court
1: From the date on which an application is made for a property order in respect of any person, no person shall, without the leave of a court,—
a: bring or continue any proceedings (not being proceedings under this Act or proceedings in the High Court
b: issue any execution, attach any debt, or otherwise enforce or seek to enforce any judgment or order (not being a judgment or order given under this Act) against the person in respect of whom the application is made; or
c:
d: determine or forfeit any tenancy,
2: This section shall also apply to a company and its property, and to any subsidiary of a company and the subsidiary's property, where the person in respect of whom the application is made is a member of the company and holds more than 50% of its issued shares
3: For the purposes of subsection (2),— company section 2(1) subsidiary section 5 Section 57(1)﻿(a) amended 1 July 1994 Protection of Personal and Property Rights Amendment Act 1994 Section 57(1)﻿(c) amended 1 January 2008 section 364(1) Property Law Act 2007 Section 57(1)﻿(d) amended 1 January 2008 section 364(1) Property Law Act 2007 Section 57(2) amended 5 December 2013 section 14 Companies Amendment Act 2013 Section 57(3) replaced 5 December 2013 section 14 Companies Amendment Act 2013
58: Notional preservation of character of assets converted
1: Where any property (including money) is derived from any sale, mortgage, charge, or other disposition of any other property belonging to a person subject to a property order pursuant to any powers conferred by or under this Act or any former corresponding Act, the person whose property is so disposed of, and anyone claiming through that person, shall have the same interest in the property so derived, so far as it has not been applied or spent or disposed of in accordance with any powers so conferred, as he or she would have had in the property disposed of if no disposition had been made, and the surplus property so derived shall be deemed to be of the same nature as the property disposed of.
2: In any such case, the manager may, for the purpose of giving better effect to the provisions of subsection (1), carry to a separate account an amount representing the property so derived, or any balance for the time being remaining.
3: While an amount stands to the credit of that separate account, any payments from the property of the person subject to a property order shall be made out of any other property properly available for the purpose, except so far as the manager decides that the payment should be made wholly or partly from the separate account.
4: Subject to subsection (5), this section shall apply in all cases, whether the property was so derived before or after the commencement of this Act, but shall not apply to any property so derived by the disposition of any property belonging to a mentally defective person who died before 18 October 1957 (being the date of the commencement of the Mental Health Amendment Act 1957 section 60
5: No distribution that has been made before the commencement of this Act of property affected by any such order shall be disturbed by reason of this section or of section 59 section 60
6: This section shall not apply to income arising from any such property so derived during the lifetime of the person subject to a property order.
59: Notional preservation of character of money expended for certain purposes
1: A court shall have power to order that the whole or any part of any money expended or to be expended for—
a: the improvement, security, or advantage of any property of a person subject to a property order; or
b: repaying money secured by a mortgage or other charge over such property,— shall be a charge upon the property, but so that no right of sale during the lifetime of the person shall be conferred by the charge.
2: The charge may include interest on the money if the court thinks fit, and the court may give directions regarding payment of interest.
3: The charge may take effect in favour of a person as trustee for the person subject to a property order as part of that latter person's personal estate or of a specified part thereof.
4: At any time before the death of a person in respect of whom the court has made an order under this section, and whether or not that person is still subject to a property order, the court may vary or discharge the charge and give any consequential directions.
5: Nothing in this section shall apply to any mortgage or charge in favour of any other person who advances the money, nor shall it restrict the operation of section 56 Section 59(5) amended 1 March 2002 section 170(1) Public Trust Act 2001
60: Court may make orders for preserving nature and devolution of property
1: A court shall have power, in the management of the property of a person subject to a property order, to make such orders as it thinks fit for the purpose of preserving the nature, quality, tenure, and devolution of the property or of any part of it.
2: Without limiting the generality of subsection (1), a court may direct that any money shall be carried to a separate account, and may declare the notional character that the money in that account bears, and may order such assurances and things to be executed and done as it thinks expedient.
3: At any time before the death of the person subject to a property order, and whether or not he or she is still subject to such an order, the court may vary or discharge the order, and give any consequential directions.
61: Termination of notional preservation of character of assets
1: Section 58 section 59 section 60
2: If the person subject to a property order has not been so entitled, section 58
a: made a valid testamentary disposition of, or paid or transferred to any other person beneficially, the capital money or the property charged or the money or other property affected by the order, as the case may be; or
b: in the case of property charged, released the charge.
3: This section shall not limit or affect any power of the court under section 59 section 60
4: Subsection (2) shall have effect whether or not the person continues to be subject to a property order or to be entitled to manage all or any of his or her money and other property.
62: Court may settle the beneficial interests of person subject to property order
1: A court may direct a settlement to be made of all or any of the property of a person subject to a property order on such trusts and subject to such powers and provisions as the court may think fit; and, in particular, the court may give such directions—
a: where the property has been acquired under a settlement or will, or on intestacy, or represents property so acquired; or
b: where,—
i: by reason of any change in the law or of any change in circumstances since the execution by the person of a testamentary disposition; or
ii: by reason of any absence of information at the time of that execution; or
iii: on account of the former management of the property or the expenditure of money in improving or maintaining it; or
iv: for any other special reason,— the court is satisfied that the devolution or distribution of the property of the person, either under any testamentary disposition or on intestacy, would be such as might cause injustice or hardship to any person.
2: A court may direct the transfer by way of gift of any of the property of a person subject to a property order for the maintenance and benefit of members of the person's family or for the provision of other persons or purposes for whom or which the person might be expected to provide if he or she were able to manage his or her own affairs in relation to his or her property.
3: A court may direct the manager, to execute any transfer or other instrument, and to do any other act or thing, that may be required for giving effect to the transfer or settlement, in the name and on behalf of the person, and for that purpose may make a vesting order or appoint a person to convey; and any settlement or transfer approved by the court shall be as effectual and binding on all persons interested as if it had been made by the person while of full competence.
4: This section applies whether or not the person has executed a testamentary disposition and notwithstanding that it is not known whether the person has executed such a disposition or not, but does not apply when the person is a minor who is not married or in a civil union
5: An application to a court for an order under this section may be made by any of the following persons:
a: any person who has or would have had any interest in the property of the person subject to a property order or any expectation of succession to any such property, whether that interest or expectation arises or could have arisen under a testamentary disposition that is known to exist or in the event of the intestacy of the person:
b: the manager:
c: any other person who adduces proof of circumstances that, in the opinion of the court, make it proper that that person should make the application.
6: Subject to making due provision for the maintenance of the person subject to a property order in accordance with his or her means and way of life, whether out of the capital or income of the property settled or other property or partly in one way and partly in another, and to providing, by means of a power of appointment or revocation, or otherwise, for the possibility of the person recovering full competence to manage his or her own affairs in relation to his or her property, the court may, in making any order under this section, have regard to all or any of the following matters:
a: the manner in which the property has been settled or dealt with on former occasions:
b: in the case of any land or business, the welfare of the persons employed in connection with the land or business, and the expediency of settling other assets to devolve with the land or business:
c: the provisions of any testamentary disposition of the person subject to a property order:
d: the expediency of providing for—
i: payments or annuities for the wife, husband, civil union partner, de facto partner,
ii: the continuation or provision of any superannuation or pension, and the application of any part of the income for charitable purposes:
iii: discretionary trusts, trusts for effecting or maintaining policies of insurance, powers of appointment, sinking funds for making good any losses (instead of or in addition to insurance), or any other purposes:
iv: the extension of any statutory powers of investment, management, or otherwise:
v: the manner in which any costs are to be raised and paid, whether out of the settled property or otherwise:
vi: any other matter or thing that the court may consider material, having regard to the nature of the settlement, development, and enjoyment, and to the persons who are to take, either successively or otherwise.
7: At any time before the death of a person in respect of whom it has made an order under this section, and whether or not he or she is still subject to a property order, the court may, in respect of any property remaining subject to the trusts of a settlement made under this section, on being satisfied that any material fact was not disclosed to the court when the settlement was made, or on account of any substantial change in circumstances, by order vary the settlement in such manner as it thinks fit, and give any consequential directions.
8: Without limiting the provisions of section 111 rules of court may be made
a: giving effect to the provisions of this section:
b: compelling information to be furnished respecting, and production of, testamentary dispositions, and their lodgement in court:
c: making representation orders. Section 62(4) amended 26 April 2005 section 7 Relationships (Statutory References) Act 2005 Section 62(6)﻿(d)﻿(i) amended 26 April 2005 section 7 Relationships (Statutory References) Act 2005 Section 62(8) amended 13 September 2002 section 6 Family Courts Amendment Act 2000
6: Procedure
63: Service of copy of application required
1: Where an application is made for the exercise of a court's jurisdiction under this Act, a copy of the application shall be served on the following persons:
a: subject to subsection (2), the person in respect of whom the application is made:
b: each parent or guardian of that person:
c: if that person is not living with either of his or her parents or guardians, any person with whom that person is living:
d: if it is proposed that a person be appointed as welfare guardian or manager, the proposed appointee:
e: if a welfare guardian is acting for that person, that welfare guardian:
f: if that person is subject to a property order, the manager of that person's property:
g: any other person specified by the court.
2: The court may dispense with service under subsection (1)﻿(a) where it is satisfied that—
a: the person in respect of whom the application is made wholly lacks the capacity to understand the nature and purpose of the proceedings; or
b: exceptional circumstances exist of a nature to justify dispensing with service.
3: Any person served with proceedings under subsection (1) shall be entitled to appear and be heard as a party to the proceedings.
64: Applications may be joined, etc
1: Applications under Parts 1 3 rules of court
2: A court may hear and determine any proceedings before it under Part 1 Part 3
3: If it appears to a court hearing an application under Part 1 Part 3 Section 64(1) amended 13 September 2002 section 6 Family Courts Amendment Act 2000
65: Appointment of lawyer to represent person in respect of whom application made
1: On an application for the exercise of the court's jurisdiction under this Act, a court or the Registrar of a court must lawyer or the Registrar lawyer
2: So far as may be practicable, it shall be the duty of the lawyer
a: contact the person in respect of whom the application is made, explain to that person the nature and purpose of the application, and ascertain and give effect to that person's wishes in respect of the application; and
b: evaluate the solutions for the problem for which an order is sought submitted by other parties to the proceedings, taking account of the need to find a solution that—
i: makes the least restrictive intervention possible in the life of the person in respect of whom the application is made, having regard to the degree of incapacity or incompetence of that person; and
ii: enables or encourages the person in respect of whom the application is made to develop and exercise such capacity or competence that the person may have to the greatest extent possible.
3:
4: A lawyer
5: Fees for professional services provided by lawyers
a: may be determined in accordance with regulations made under this Act; and
b: are payable out of public money appropriated by Parliament for the purpose.
6: An invoice for fees and expenses submitted for payment by a lawyer appointed under this section must be given to a Registrar of the court, and the Registrar processing the invoice may decide to adjust the amount of the invoice.
7: If the lawyer invoice lawyer
8: Notwithstanding subsection (5), the court shall have regard to the means of any party to the proceedings or the person in respect of whom the application is made, and shall, if it thinks proper, order any party or the person to refund to the Crown such amount as the court specifies in respect of any fees or expenses paid under that subsection; and the amount ordered to be refunded shall be a debt due to the Crown by that party or by that person and shall be recoverable accordingly in any court of competent jurisdiction. Section 65 heading replaced 31 March 2014 section 4(1) Protection of Personal and Property Rights Amendment Act 2013 Section 65(1) amended 31 March 2014 section 4(2) Protection of Personal and Property Rights Amendment Act 2013 Section 65(1) amended 18 May 2009 section 4(2)﻿(a) Protection of Personal and Property Rights Amendment Act 2008 Section 65(1) amended 18 May 2009 section 4(2)﻿(b) Protection of Personal and Property Rights Amendment Act 2008 Section 65(2) amended 31 March 2014 section 4(2) Protection of Personal and Property Rights Amendment Act 2013 Section 65(3) repealed 31 March 2014 section 4(3) Protection of Personal and Property Rights Amendment Act 2013 Section 65(3) amended 18 May 2009 section 4(3) Protection of Personal and Property Rights Amendment Act 2008 Section 65(4) amended 31 March 2014 section 4(2) Protection of Personal and Property Rights Amendment Act 2013 Section 65(5) substituted 1 July 1994 Protection of Personal and Property Rights Amendment Act 1994 Section 65(5) amended 31 March 2014 section 4(4) Protection of Personal and Property Rights Amendment Act 2013 Section 65(5)﻿(b) substituted 3 June 1998 section 2 Protection of Personal and Property Rights Amendment Act 1998 Section 65(6) replaced 8 September 2018 section 78 Statutes Amendment Act 2018 Section 65(7) amended 31 March 2014 section 4(2) Protection of Personal and Property Rights Amendment Act 2013 Section 65(7) amended 31 March 2014 section 4(6) Protection of Personal and Property Rights Amendment Act 2013
65A: Appointment of lawyer to assist court
In any proceedings under this Act, a court may—
a: appoint a lawyer to assist the court; or
b: direct the Registrar of the court to appoint a lawyer to assist the court. Section 65A inserted 31 March 2014 section 5 Protection of Personal and Property Rights Amendment Act 2013
65B: Payment of lawyer appointed under section 65A
1: The fees and expenses of any lawyer appointed under section 65A
a: be determined in accordance with regulations made under section 16D Family Court Act 1980 a Registrar
b: be paid in accordance with that determination out of public money appropriated by Parliament for the purpose.
2: An invoice for fees and expenses submitted for payment by a lawyer appointed under section 65A
3: A lawyer who is dissatisfied with the decision of the Registrar as to the amount of the invoice may, within 14 days after the date of the decision, apply to a Family Court Judge to review the decision, and the Judge may on the application make any order varying or confirming the decision that the Judge considers fair and reasonable.
4: Where the fees and expenses of a lawyer appointed under section 65A the District Court Section 65B inserted 31 March 2014 section 5 Protection of Personal and Property Rights Amendment Act 2013 Section 65B(1)﻿(a) amended 8 September 2018 section 79(1) Statutes Amendment Act 2018 Section 65B(1)﻿(a) amended 1 March 2017 section 261 District Court Act 2016 Section 65B(2) replaced 8 September 2018 section 79(2) Statutes Amendment Act 2018 Section 65B(4) amended 1 March 2017 section 261 District Court Act 2016 Pre-hearing conferences
66: Calling of pre-hearing conference
1: When an application for the exercise of the court's jurisdiction under this Act has been filed in a court, any of the following persons may request the Registrar to convene a pre-hearing conference:
a: the applicant:
b: the person in respect of whom the application is made:
c: any barrister or solicitor appointed pursuant to section 65(1)
d: any other person upon whom a copy of the application has been served in accordance with section 63
2: When an application for the exercise of the court's jurisdiction under this Act has been filed in a court, any Family Court Judge may direct the Registrar to convene a pre-hearing conference.
3: On receiving a request under subsection (1) or a direction under subsection (2), the Registrar shall—
a: appoint a time and place for the holding of a pre-hearing conference, being as soon as reasonably practicable after the receipt of the request or direction; and
b: give notice to each of the persons referred to in paragraphs (a) to (d) of subsection (1) of the time and place of the pre-hearing conference, and request each of those persons to attend the conference.
67: Objectives of pre-hearing conference
The objectives of a pre-hearing conference shall be—
a: to identify the problem for which an order of the court is sought; and
b: to reach agreement between the parties and the person in respect of whom the application is made on a solution for the problem.
68: Procedure at pre-hearing conference
1: Every pre-hearing conference shall be presided over by a Family Court Judge.
2: The barrister or solicitor representing the person in respect of whom the application is made shall be present at the pre-hearing conference to assist and advise that person (if that person is present) or to represent that person (if that person is not present).
3: Subject to any direction by the presiding Judge to the contrary, any barrister or solicitor representing any other party to the application may be present at the pre-hearing conference to assist and advise that party.
4: Subject to any direction by the presiding Judge to the contrary, every pre-hearing conference shall be held in private.
5: The presiding Judge may from time to time adjourn a pre-hearing conference to such time and place as the Judge may determine.
69: Identification of issues
1: If the parties at a pre-hearing conference agree on the nature of the problem for which an order of the court is sought, and on the solution for that problem, the presiding Judge shall record in writing the terms of the agreement.
2: Where agreement is not reached on all matters, the presiding Judge shall record in writing those matters on which there is agreement and those matters on which there is no agreement.
3: In every case, the presiding Judge shall state in the record whether or not—
a: the person in respect of whom the application is made was present during the pre-hearing conference; and
b: the person was able to understand the nature and purpose of the proceedings; and
c: the person agreed to any matter referred to in subsection (1).
4: The record made by the presiding Judge under subsection (1) or subsection (2) shall be filed in the District Court in which the relevant application is filed.
70: Power of presiding Judge to make consent orders
1: Subject to subsection (2), at a pre-hearing conference the presiding Judge may, by consent of the parties, make any orders that could have been made by the Family Court
2: The presiding Judge shall not make an order under subsection (1) unless the Judge is satisfied that the person in respect of whom the application is made understands the nature and foresees the consequences of the order and consents to the order.
3: An order made under this section shall for all purposes have the same effect as if it were made by consent in proceedings before the Family Court Section 70(1) amended 1 March 2017 section 261 District Court Act 2016 Section 70(3) amended 1 March 2017 section 261 District Court Act 2016
71: Power to require attendance at pre-hearing conference
1: Where a person fails to comply with a request under section 66
2: Section 159 Section 71(2) amended 1 July 2013 section 413 Criminal Procedure Act 2011
72: Privilege
1: No evidence shall be admissible in any court, or before any person acting judicially, of any information, statement, or admission disclosed or made in the course of a pre-hearing conference.
2: Nothing in subsection (1) shall apply to a record made by a Family Court Judge under section 69 section 70
73: Presiding Judge may hear subsequent proceedings
The Family Court Judge who presides over a pre-hearing conference shall be entitled to hear any subsequent proceedings under that application unless in all the circumstances the Judge decides, of the Judge's own motion or on application by any party,—
a: that it would be inappropriate for the Judge to do so; or
b: that there is some other sufficient reason for the application to be heard by another Judge. Proceedings before court
74: Attendance of person in respect of whom application is made
1: The person in respect of whom an application for the exercise of the court's jurisdiction under this Act is made shall be present throughout the hearing unless excused or excluded by the court under subsection (2) or subsection (3).
2: The court may excuse the person if it is satisfied that—
a: the person wholly lacks the capacity to understand the nature and purpose of the proceedings; or
b: attendance or continued attendance is likely to cause the person serious mental, emotional, or physical harm.
3: The court may exclude the person if it is satisfied that the person is causing such a disturbance that it is not practicable to continue with the hearing in the presence of that person.
4: The court may exercise its discretion to excuse or exclude the person at any stage of the hearing.
5: The person shall be present while the court makes any order upon the application unless—
a: the person has been excused or excluded under subsection (2) or subsection (3); or
b: there are exceptional circumstances justifying the court making an order in the absence of the person. Section 74(2) replaced 14 November 2018 section 157 Courts Matters Act 2018
75: Right of person to be heard and call evidence
1: Where the person in respect of whom an application for the exercise of the court's jurisdiction under this Act is made is not a party to the application, the person shall be entitled to be heard by the court, whether in person or through a barrister or solicitor, and to call witnesses, and to cross-examine any witness called by any party to the proceedings.
2: Without limiting anything in subsection (1), where the person is present and appears capable of addressing the court, the court shall give the person an opportunity to do so; and, in any such case, the court may, if it thinks it desirable to do so, require any parent or guardian of that person, or any other person with whom that person is living, or any barrister or solicitor representing any such parent, guardian, or other person, to withdraw from the court while the person is addressing the court.
3: Nothing in this section shall limit or affect the rights of the person in respect of whom the application is made where the person is a party to the proceedings.
76: Court may call for report on person
1: On an application for the exercise of the court’s jurisdiction under this Act, a court may, if it is satisfied that it is necessary for the proper disposition of the application,—
a: request any person whom it considers qualified to do so to prepare a medical, psychiatric, psychological, or other report on the person in respect of whom the application is made; or
b: direct the Registrar of the court to request any person whom the Registrar considers qualified to do so to prepare a medical, psychiatric, psychological, or other report on the person in respect of whom the application is made.
2: In deciding whether or not to request a report or make a direction
3: A copy of any report obtained under this section shall be given by the Registrar of the court to—
a: the lawyer lawyer
b: any lawyer section 65A
4: A report given to a lawyer lawyer
5: Fees for reports prepared pursuant to a request under subsection (1), and reasonable expenses incurred,—
a: may be determined in accordance with regulations made under this Act; and
b: are payable by such party or parties to the proceedings as the court orders or, if the court so decides, are payable out of public money appropriated by Parliament for the purpose.
5A: Any amount of any fees and expenses ordered to be paid by any party under subsection (5)﻿(b) shall, if paid by the Crown, be a debt due to the Crown by that party and, in default of payment of the amount, payment thereof may be enforced, by order of the District Court
6: Any party to the proceedings, or the person in respect of whom the application is made, or any lawyer section 65A
7: The court may call the person making the report as a witness, either of its own motion or on the application of any party or the person in respect of whom the application is made. Section 76(1) substituted 18 May 2009 section 5(1) Protection of Personal and Property Rights Amendment Act 2008 Section 76(2) amended 18 May 2009 section 5(2) Protection of Personal and Property Rights Amendment Act 2008 Section 76(3)﻿(a) amended 31 March 2014 section 6(1) Protection of Personal and Property Rights Amendment Act 2013 Section 76(3)﻿(b) amended 31 March 2014 section 6(1) Protection of Personal and Property Rights Amendment Act 2013 Section 76(3)﻿(b) amended 31 March 2014 section 6(2) Protection of Personal and Property Rights Amendment Act 2013 Section 76(4) amended 31 March 2014 section 6(1) Protection of Personal and Property Rights Amendment Act 2013 Section 76(5) substituted 1 July 1994 Protection of Personal and Property Rights Amendment Act 1994 Section 76(5)﻿(b) substituted 3 June 1998 section 3 Protection of Personal and Property Rights Amendment Act 1998 Section 76(5A) inserted 1 July 1994 Protection of Personal and Property Rights Amendment Act 1994 Section 76(5A) amended 1 March 2017 section 261 District Court Act 2016 Section 76(6) amended 31 March 2014 section 6(1) Protection of Personal and Property Rights Amendment Act 2013 Section 76(6) amended 31 March 2014 section 6(3) Protection of Personal and Property Rights Amendment Act 2013
77: Evidence
Section 77 repealed 31 March 2014 section 17A(i) Family Courts Act 1980
78: Power of court to call witnesses
1: Without limiting anything in section 77
2: A witness called by a court under this section shall have the same privilege to refuse to answer any question as the witness would have if the witness had been called by a party to the proceedings.
3: A witness called by a court under this section may be examined and re-examined by the court
4: Sections 159 161 to 165
5: The expenses of any witness called by a court under this section shall be paid in the first instance, in accordance with the prescribed scale of witnesses' expenses, out of public Section 78(3) amended 31 March 2014 section 7 Protection of Personal and Property Rights Amendment Act 2013 Section 78(4) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 78(5) amended 1 July 1989 section 86(1) Public Finance Act 1989
79: Attendance at hearings
1: The following persons may attend a hearing of an application under this Act:
a: officers of the court:
b: parties to the proceedings:
c: lawyers representing parties to the proceedings:
d: the person in respect of whom the application is made:
e: the lawyer representing the person in respect of whom the application is made:
f: a lawyer appointed under section 65A
g: witnesses:
h: accredited news media reporters:
i: persons whom the Judge permits to be present as support persons for any person described in paragraphs (b) and (d):
j: any other person whom the Judge permits to be present.
2: The Family Court Judge must agree to a request under subsection (1)﻿(i) unless the Judge considers there is a good reason why the named support persons should not be permitted to be present.
3: No support persons may help a party conduct his or her case.
4: If, during a hearing, the Family Court Judge requests a person of any of the following kinds to leave the courtroom, the person must do so:
a: a witness:
b: an accredited news media reporter:
c: a support person whom the Judge permitted to be present under subsection (1)﻿(i).
5: Nothing in this section limits any other power of the court—
a: to hear proceedings in private; or
b: to permit a McKenzie friend to be present; or
c: to exclude any person from the court. Section 79 substituted 18 May 2009 section 6 Protection of Personal and Property Rights Amendment Act 2008 Section 79(1)﻿(f) replaced 31 March 2014 section 8 Protection of Personal and Property Rights Amendment Act 2013
80: Publication of reports of proceedings
Sections 11B to 11D Family Court Act 1980
a: in the Family Court:
b: in any other court, in which case references in those sections to the Family Court or court must be read as references to that other court. Section 80 substituted 18 May 2009 section 7 Protection of Personal and Property Rights Amendment Act 2008 Section 80 amended 1 March 2017 section 261 District Court Act 2016 Section 80(a) replaced 1 March 2017 section 261 District Court Act 2016
81: Costs
Subject to any other provision of this Act, a court, on the hearing of any proceedings before it under this Act, may make such order as to costs as it thinks fit.
7: Appeals and reviews
82: Court to state whether order is suspended pending appeal
When a court makes a personal order or a property order, it shall state in the order whether, in the event of an appeal being lodged, the order is or is not to be suspended in whole or in part pending the determination of the appeal.
83: Right of appeal to High Court
1: If, on an application for the exercise of the court's jurisdiction under this Act, the court makes or refuses to make an order, or dismisses or otherwise finally determines the proceedings, a party to the proceedings or the person in respect of whom the application was made may appeal to the High Court against the order or other decision of the court.
2: If the court makes an interlocutory or interim order, a party to the proceedings or the person in respect of whom the application was made may, with the leave of the court, appeal to the High Court against the order.
3: The High Court Rules 2016 sections 126 to 130 section 124
4: On the ex parte section 126(1)
5: Subsection (4) overrides subsection (3). Section 83 substituted 24 November 2003 section 4 District Courts Amendment Act 2002 Section 83(3) replaced 1 March 2017 section 261 District Court Act 2016 Section 83(4) amended 1 March 2017 section 261 District Court Act 2016
83A: Procedure on appeal to High Court
The High Court Rules 2016 sections 127 to 130 section 83 Section 83A substituted 1 January 2004 section 48(1) Supreme Court Act 2003 Section 83A amended 1 March 2017 section 261 District Court Act 2016 Section 83A amended 18 October 2016 section 183(c) Senior Courts Act 2016
84: Further appeal to Court of Appeal
A party to an appeal under section 83 Section 84 substituted 1 January 2004 section 48(1) Supreme Court Act 2003
85: Appeals to Court of Appeal from decisions of High Court
1: Where—
a: an application to the Family Court for the exercise of the court’s jurisdiction under this Act has been transferred to the High Court in accordance with section 14
b: the High Court has made or refused to make an order,— a party to the proceedings or the person in respect of whom the application was made may, within 28 days after the making of the order or decision or within such further time as the Court of Appeal may allow, appeal to the Court of Appeal against the order or decision.
2: Every appeal under subsection (1), except an appeal upon a question of law, shall be by way of rehearing of the original proceedings as if the proceedings had been properly commenced in the Court of Appeal.
3: Section 85(1)﻿(a) replaced 1 March 2017 section 261 District Court Act 2016 Section 85(3) repealed 1 January 2004 section 48(1) Supreme Court Act 2003
86: Review of personal orders
1: Without limiting anything in sections 10(3) 11(4) 12(7)
a: the person in respect of whom the order was made:
b: any welfare guardian or manager who is acting for that person:
c: any other person, with the leave of the court.
2: Without limiting the discretion of the court on any application under subsection (1), but subject to subsection (3), on an application made pursuant to section 10(3) section 11(4) section 12(7)
a: the capacity of the person to understand the nature and to foresee the consequences of decisions in respect of matters relating to the personal care and welfare of the person; and
b: the capacity of the person to communicate decisions in respect of such matters.
3: Notwithstanding anything in subsection (2), where an application for review is made to provide for a new welfare guardian to be appointed in place of the present welfare guardian, the court shall not be obliged to review (but may review) the matters specified in that subsection.
4: On any application for the review of a personal order, the primary objectives of the court shall be those set out in section 8
5: Subject to subsection (6), on any application for review of a personal order, a court may—
a: vary or decline to vary the order; or
b: discharge or decline to discharge the order; or
c: extend the order for a further period; or
d: make any order, whether in addition to or instead of the order under review, that it could have made on the original application.
5A: The power to vary an order under subsection (5)﻿(a) or to make an order under subsection (5)﻿(d) includes the power to substitute a new welfare guardian in place of the welfare guardian named in the original or any subsequent order.
6: On any application to which subsection (2) applies, the court shall not make any order that would extend the effect of the original order beyond the date on which it would otherwise expire unless the court is satisfied, having regard to the relevant provisions of Part 1
7: If the court does make an order that extends the effect of the original order beyond the date on which it would otherwise have expired, the following provisions shall apply:
a: in the case of an order made under section 11 5 years, or if the court considers it appropriate, a lesser period
b: in the case of an order made under section 12 5 years, or if the court considers it appropriate, a lesser period
c: in any other case, the court may specify a date by which the original order is to be further reviewed by the court and, if it does so, the court shall also specify the person or persons who is or are to be responsible for applying to the court for a further review of the original order before the specified date.
8: Section 86(5A) inserted 14 November 2018 section 158(1) Courts Matters Act 2018 Section 86(7)﻿(a) amended 14 November 2018 section 158(2) Courts Matters Act 2018 Section 86(7)﻿(b) amended 14 November 2018 section 158(2) Courts Matters Act 2018 Section 86(8) repealed 14 November 2018 section 158(3) Courts Matters Act 2018
87: Review of property orders
1: Where a trustee corporation—
a: has filed in a court an application made to the trustee corporation under section 32 section 33
b: is deemed by subsection (3) or subsection (4) of section 117 the trustee corporation shall, in accordance with subsection (1A), file in the court the reports specified in subsection (1B).
1A: The reports required by subsection (1) shall,—
a: where subsection (1)﻿(a) applies, be filed not earlier than 2 years nor later than 3 years after the date of the filing of the application; or
b: where subsection (1)﻿(b) applies, be filed by the date specified in the programme drawn up in accordance with the Protection of Personal and Property Rights Regulations 1988
1B: The reports required under subsection (1) comprise—
a: a report from each of 2 medical practitioners (at least 1 of whom must be independent of the applicant, or any relative of the applicant) as to the extent to which the person subject to the order has the competence or lacks the competence to manage his or her own affairs in relation to his or her property; and
b: a report from the trustee corporation on the current condition of the person subject to the order, which report—
i: shall indicate whether or not there has been any change in that person's condition since the application was made; and
ii: shall contain other relevant information.
1C: If, after consideration of the reports filed in accordance with subsection (1), the court is of the opinion—
a: that the order should be discharged or that the order should be extended; and
b: a full review by the court in accordance with subsections (3) to (10) is unnecessary,— the court may order that the order be discharged or that the order be extended with such variation, if any, as the court may direct.
1D: Notwithstanding subsections (1) to (1C), where the reports are filed under subsection (1)﻿(a), the court may if it thinks fit, either on its own motion or on the application of a person specified in subsection (2), direct that a full review of the case be undertaken and subsections (3) to (10) shall apply with any necessary modification to every such review as if the original application filed in the court were an order made by the court.
1E: Notwithstanding subsections (1) to (1C), where the reports are filed under subsection (1)﻿(b), the court may if it thinks fit, either on its own motion or on the application of a person specified in subsection (2), direct that a full review of the case be undertaken and subsections (3) to (10) shall apply.
1F: In any case other than a case in which reports have been filed under subsection (1) in relation to a person subject to a property order, any person who, under a property order, is the manager of any property and who is of the opinion that the property order should be discharged may file in the court—
a: a report from each of 2 medical practitioners (at least 1 of whom must be independent of the applicant or any relative of the applicant) as to the extent to which the person subject to the order has the competence to manage his or her own affairs in relation to his or her property; and
b: a report from the manager on the current condition of the person subject to the order, which report—
i: shall set out the nature and extent of the change in that person's condition since the order was made; and
ii: shall contain other relevant information.
1G: If, after consideration of the reports filed in accordance with subsection (1F), the court is of the opinion—
a: that the order should be discharged; and
b: that a full review by the court in accordance with subsections (3) to (10) is unnecessary,— the court may order that the order be discharged.
1H: Notwithstanding subsections (1F) and (1G), where an application is made under subsection (1F), the court may if it thinks fit, either on its own motion or on the application of a person specified in subsection (2), direct that a full review of the case be undertaken and subsections (3) to (10) shall apply.
2: Without limiting anything in section 31(8) subsections (1) to (1H)
a: the person in respect of whom the order was made:
b: the manager or any welfare guardian who is acting for that person:
c: any person described in paragraphs (b) to (h) of section 26
d: any other person, with the leave of the court.
3: Without limiting the discretion of the court on any application under subsection (2), but subject to subsection (4), on an application made pursuant to section 31(8) where the court directs under subsection (1D) or subsection (1E) or subsection (1H) that a full review of a case be undertaken,
4: Notwithstanding anything in subsection (3), where an application for review is made to provide for a new manager to be appointed in place of the present manager, the court shall not be obliged to review (but may review) the matters specified in that subsection.
5: On any application for the review of a property order, the primary objectives of the court shall be those set out in section 28
6: Subject to subsection (7), on any application for review of a property order, a court may—
a: vary or decline to vary the order; or
b: discharge or decline to discharge the order; or
c: extend the order; or
d: make any order, whether in addition to or instead of the order under review.
7: On any application to which subsection (3) applies, the court shall not make any order that would extend the original order beyond the date on which it would otherwise expire unless the court is satisfied, having regard to the relevant provisions of Part 3
8: If the court does make an order that extends the effect of the original order beyond the date on which it would otherwise have expired, the court shall specify a date, being 5 years or, if the court considers it appropriate, a lesser period
9:
10: No order to which subsection (8) Section 87(1) substituted 1 July 1994 Protection of Personal and Property Rights Amendment Act 1994 Section 87(1A) inserted 1 July 1994 Protection of Personal and Property Rights Amendment Act 1994 Section 87(1B) inserted 1 July 1994 Protection of Personal and Property Rights Amendment Act 1994 Section 87(1B)﻿(a) substituted 18 September 2004 section 175(1) Health Practitioners Competence Assurance Act 2003 Section 87(1C) inserted 1 July 1994 Protection of Personal and Property Rights Amendment Act 1994 Section 87(1D) inserted 1 July 1994 Protection of Personal and Property Rights Amendment Act 1994 Section 87(1E) inserted 1 July 1994 Protection of Personal and Property Rights Amendment Act 1994 Section 87(1F) inserted 1 July 1994 Protection of Personal and Property Rights Amendment Act 1994 Section 87(1F)﻿(a) substituted 18 September 2004 section 175(1) Health Practitioners Competence Assurance Act 2003 Section 87(1G) inserted 1 July 1994 Protection of Personal and Property Rights Amendment Act 1994 Section 87(1H) inserted 1 July 1994 Protection of Personal and Property Rights Amendment Act 1994 Section 87(2) amended 1 July 1994 Protection of Personal and Property Rights Amendment Act 1994 Section 87(3) amended 1 July 1994 Protection of Personal and Property Rights Amendment Act 1994 Section 87(8) amended 14 November 2018 section 159(1) Courts Matters Act 2018 Section 87(9) repealed 14 November 2018 section 159(2) Courts Matters Act 2018 Section 87(10) added 1 July 1994 Protection of Personal and Property Rights Amendment Act 1994 Section 87(10) amended 14 November 2018 section 159(3) Courts Matters Act 2018
88: Procedure on review
On any application for the review of any personal order or property order, the provisions of sections 63 to 65A 74 to 81 Section 88 amended 31 March 2014 section 9 Protection of Personal and Property Rights Amendment Act 2013
89: Review of welfare guardian's or manager's decisions
1: A person for whom a welfare guardian or a manager is acting, and any other person with the leave of the court, may at any time apply to a court to review any decision made by the welfare guardian or manager, and the court may, if it thinks it reasonable to do so in all the circumstances, review the decision and make such order as it thinks fit.
2: An order made under subsection (1) shall have effect according to its tenor.
8: Reciprocal provisions
90: Interpretation
In this Part, unless the context otherwise requires,— authorised officer country incapacitated person
a: has been committed to or is lawfully detained in a hospital or other institution authorised by the law of the country where he or she is for the reception and care of persons suffering from any form of mental disorder, mental illness, or mental disability; or
b: has been found to be suffering from any form of mental disorder, mental illness, or mental disability by any court, tribunal, or other authority or person of competent jurisdiction in the country where he or she is, whether or not he or she has been committed to or is detained in any hospital or institution,— and who, under the law of that country, is not or is deemed not to be competent, by reason of such disorder, illness, or disability, of managing his or her own affairs in relation to his or her property; or
c: is subject to any rule of law in that country providing for the protection of personal and property rights of persons who wholly or partially lack the capacity to understand the nature and foresee the consequences of decisions in respect of matters relating to their personal care and welfare.
91: Powers of
Public Trust
1: The Governor-General may from time to time, by Order in Council, apply the provisions of this section, subject to any exceptions and modifications specified in the order, to any country specified in the order.
2: If an authorised officer of any country in respect of which an Order in Council under subsection (1) is for the time being in force—
a: certifies in writing under his or her hand and seal to Public Trust
i: any person in that country (whatever that person's domicile may be) is, by the law of that country, an incapacitated person; and
ii: that the person is possessed of or entitled to or interested in any property in New Zealand; and
b: such authorised officer, by instrument in writing under his or her hand and seal, authorises Public Trust Public Trust Public Trust Public Trust
3: Subject to subsection (4), the powers, duties, and functions of Public Trust Public Trust
4: Public Trust Public Trust Public Trust
5: An Order in Council under this section is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 91 heading amended 1 March 2002 section 170(1) Public Trust Act 2001 Section 91(2) amended 1 March 2002 section 170(1) Public Trust Act 2001 Section 91(2)﻿(a) amended 1 March 2002 section 170(1) Public Trust Act 2001 Section 91(2)﻿(b) amended 1 March 2002 section 170(1) Public Trust Act 2001 Section 91(3) amended 1 March 2002 section 170(1) Public Trust Act 2001 Section 91(4) amended 1 March 2002 section 170(1) Public Trust Act 2001 Section 91(5) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
92: Appointment of authorised officer in another country
If it appears to the manager of a person subject to a property order in New Zealand that the person is possessed of or entitled to or interested in property in any country in respect of which an Order in Council under section 91(1)
93: Resealing in New Zealand
1: The Governor-General may from time to time, by Order in Council, apply the provisions of this section, subject to any exceptions and modifications specified in the order, to any country specified in the order.
2: When any Order in Council under subsection (1) is for the time being in force in respect of any country, a copy of any order or declaration made by a court of competent jurisdiction under the law of that country in the exercise of its jurisdiction in respect of incapacitated persons or their estates may be deposited with a Registrar of a court in New Zealand and shall thereupon, subject to the payment of any prescribed fees, be sealed with the seal of that court.
3: On the sealing of the order or declaration under subsection (2), it shall, subject to subsection (4) and to any exceptions or modifications specified in the Order in Council, have the like force and effect and have the same operation, and every master, curator, administrator, guardian, committee, manager, or receiver acting under it shall perform the same duties and be subject to the same liabilities in New Zealand, as if it had been originally made by the court in New Zealand.
4: No such master, curator, administrator, guardian, committee, manager, or receiver appointed under any such order shall have or exercise any power or authority under it in New Zealand after it has been so sealed until his or her appointment has been confirmed by a court in New Zealand, which confirmation may be granted on such terms as the court thinks fit or may be refused.
5: This section shall apply to such orders and declarations, whether made before or after the commencement of this Act.
6: An Order in Council under this section is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 93(6) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
9: Enduring powers of attorney
93A: Purpose of this Part
1: The purpose of this Part is to enable a person (the donor
a: grant to another person an enduring power of attorney to act in relation to the donor's personal care and welfare if the donor becomes mentally incapable:
b: grant to another person or persons enduring powers of attorney to act in relation to the donor's property affairs—
i: if the donor becomes mentally incapable; or
ii: while the donor is mentally capable and if the donor becomes mentally incapable:
c: grant to another person an enduring power of attorney to act in both capacities.
2: Accordingly, this Part—
a: states the requirements for creating an enduring power of attorney:
b: defines when a donor is mentally incapable for the purposes of this Part:
c: states the duties of an attorney (in addition to those set out in the enduring power of attorney):
d: sets out the court's jurisdiction in respect of an enduring power of attorney:
e: provides for the review by the court of any decision of an attorney:
f: establishes the circumstances in which an enduring power of attorney may be suspended or revoked. Section 93A inserted 25 September 2008 section 6 Protection of Personal and Property Rights Amendment Act 2007
93B: Presumption of competence
1: For the purposes of this Part, every person is presumed, until the contrary is shown,—
a: to be competent to manage his or her own affairs in relation to his or her property:
b: to have the capacity—
i: to understand the nature of decisions about matters relating to his or her personal care and welfare; and
ii: to foresee the consequences of decisions about matters relating to his or her personal care and welfare or of any failure to make such decisions; and
iii: to communicate decisions about those matters.
2: A person must not be presumed to lack the competence described in subsection (1)﻿(a) just because the person manages or intends to manage his or her own affairs in relation to his or her property in a manner that a person exercising ordinary prudence would not adopt in the same circumstances.
3: A person must not be presumed to lack the capacity described in subsection (1)﻿(b) just because the person makes or intends to make a decision in relation to his or her personal care and welfare that a person exercising ordinary prudence would not make in the same circumstances.
4: A person must not be presumed to lack the competence described in subsection (1)﻿(a) or, as the case may be, the capacity described in subsection (1)﻿(b), just because the person is subject to compulsory treatment or has special patient status under the Mental Health (Compulsory Assessment and Treatment) Act 1992 Section 93B inserted 25 September 2008 section 6 Protection of Personal and Property Rights Amendment Act 2007
94: Interpretation
1: For the purposes of this Part, the donor of an enduring power of attorney is mentally incapable in relation to property if the donor is not wholly competent to manage his or her own affairs in relation to his or her property.
2: For the purposes of this Part, the donor of an enduring power of attorney is mentally incapable in relation to personal care and welfare if the donor—
a: lacks the capacity—
i: to make a decision about a matter relating to his or her personal care and welfare; or
ii: to understand the nature of decisions about matters relating to his or her personal care and welfare; or
iii: to foresee the consequences of decisions about matters relating to his or her personal care and welfare or of any failure to make such decisions; or
b: lacks the capacity to communicate decisions about matters relating to his or her personal care and welfare.
3: Nothing in subsection (1) or (2) affects any rule of law relating to capacity to give or to revoke a power of attorney.
4: In this Part— health practitioner
a: has the meaning given to it by section 5(1)
b: in the case of a certificate of mental incapacity issued outside New Zealand, means a person registered as a medical practitioner by the competent authority of the State concerned lawyer section 6 prescribed form relevant health practitioner
a: whose scope of practice includes the assessment of a person's mental capacity; or
b: whose scope of practice—
i: includes the assessment of a person's mental capacity; and
ii: is specified in the enduring power of attorney (for example, a specialist). Section 94 substituted 25 September 2008 section 7 Protection of Personal and Property Rights Amendment Act 2007
94A: Creation of enduring power of attorney
1: This section applies only to a power of attorney executed after the commencement of section 7
2: The instrument creating an enduring power of attorney—
a: must be in the prescribed form; and
b: must have attached to it the certificate referred to in subsection (7).
3: The instrument must be signed—
a: by the donor, or by some other person in the presence of the donor and by the direction of the donor; and
b: by the attorney (or if more than 1, by each attorney).
4: The signature of the donor must be witnessed by a person who, subject to subsection (8), is independent of the attorney (or of each attorney) and who is—
a: a lawyer; or
b: an officer or employee of a trustee corporation authorised by the corporation for the purposes of this subsection; or
c: a legal executive who meets the requirements of subsection (9).
4A: If 2 people appoint each other as attorney, the witness to the signature of one person as donor ( witness A
a: is a lawyer or legal executive in the same firm, or an officer or employee of the same trustee corporation, as witness A; or
b: is the same person as witness A, if, having regard to the matters listed in subsection (7)﻿(a) to (b), the witness is satisfied that witnessing both signatures does not constitute more than a negligible risk of a conflict of interest.
5: The signature of an attorney must be witnessed by a person other than the donor or the donor's witness.
6: Before the donor signs the instrument, the witness to the donor's signature must explain the effects and implications of the enduring power of attorney to the donor, and advise the donor of—
a: the matters referred to in the notes to the prescribed form of power of attorney:
b: the donor's right to suspend or revoke the power of attorney:
c: in the case of a power of attorney in relation to property,—
i: the donor's right to appoint more than 1 attorney, or a trustee corporation, as attorney; and
ii: the donor's right to stipulate whether and, if so, how the attorney's dealings with the donor's property are to be monitored.
6A: If regulations made under section 112(bab)
a: giving a copy of the form to the donor; and
b: following any instructions in the form for giving a verbal explanation to the donor; and
c: if the form and the instructions do not cover all of the matters in subsection (6), using other appropriate means to fulfil all of the requirements of that subsection.
7: The witness to the donor's signature must certify on the prescribed form for the certificate referred to in subsection (2)﻿(b)
a: the requirements of subsection (6) have been met; and
ab: in the case of an enduring power of attorney signed by the donor after the commencement of this paragraph, the witness believes on reasonable grounds that the donor—
i: understands the nature of the instrument; and
ii: understands the potential risks and consequences of the instrument; and
iii: is not acting under undue pressure or duress; and
b: the witness has no reason to suspect that the donor was or may have been mentally incapable at the time the donor signed the instrument; and
c: the witness is independent of the attorney (or of each attorney) or that subsection (8)﻿(a) or (b) applies or, if subsection (4A)﻿(b) applies, the witness is satisfied that no more than a negligible risk of a conflict of interest arises
8: Despite subsection (4),—
a: if the attorney is a trustee corporation, an officer or employee of that corporation authorised by the corporation for the purposes of this subsection may witness the donor's signature:
b: if the attorney is appointed in his or her capacity as a lawyer, another lawyer in the attorney's firm or a legal executive in that firm who meets the requirements of subsection (9) may witness the donor's signature.
9: A legal executive who witnesses the donor's signature—
a: must be a member of the body that, immediately before the commencement of section 7
b: must hold a current annual registration certificate issued by that body; and
c: must have at least 12 months' experience as a legal executive; and
d: must be employed by, and under the direct supervision of, a lawyer. Section 94A inserted 25 September 2008 section 7 Protection of Personal and Property Rights Amendment Act 2007 Section 94A(4A) replaced 16 March 2017 section 77(1) Statutes Amendment Act 2016 Section 94A(6A) inserted 16 March 2017 section 77(2) Statutes Amendment Act 2016 Section 94A(7) amended 16 March 2017 section 77(3) Statutes Amendment Act 2016 Section 94A(7)﻿(ab) inserted 16 March 2017 section 77(4) Statutes Amendment Act 2016 Section 94A(7)﻿(c) amended 16 March 2017 section 77(5) Statutes Amendment Act 2016
95: When power of attorney is an enduring power of attorney
1: Except as otherwise provided in this section, a power of attorney that meets the requirements of section 94A
2: A power of attorney purporting to be an enduring power of attorney has effect even though it is not in the prescribed form, but only if—
a: no prescribed provision is substantially omitted; and
b: the differences are immaterial.
3: A power of attorney shall not have effect as an enduring power of attorney unless the attorney, when signing the instrument creating it, is—
a: an individual who is not less than 20 years of age, is not bankrupt, and is not subject to a personal order or a property order; or
b: a trustee corporation.
4: A power of attorney delegating trustee powers, authorities, and discretions under section 70
5: A power of attorney that gives the attorney the right to appoint a substitute or a successor shall not have effect as an enduring power of attorney; but an enduring power of attorney may provide for successive attorneys, the appointment of one being conditional upon the cessation of the appointment of another.
6: A power of attorney executed before the commencement of this Act shall not have effect as an enduring power of attorney. Section 95(1) substituted 25 September 2008 section 8(1) Protection of Personal and Property Rights Amendment Act 2007 Section 95(2) substituted 25 September 2008 section 8(2) Protection of Personal and Property Rights Amendment Act 2007 Section 95(4) amended 30 January 2021 section 161 Trusts Act 2019
95A: Notice revoking earlier enduring power of attorney
1: If an enduring power of attorney states that it revokes an earlier enduring power of attorney and both powers of attorney are of the same kind, they both continue to have effect until the earlier power of attorney is revoked by notice given in the manner set out in subsection (2) or ceases to have effect by any of the other ways listed in section 106(1)
2: Notice revoking an earlier power of attorney is given when a copy of the later power of attorney is given to the attorney or attorneys appointed under the earlier power of attorney and, to avoid doubt, the notice may be given by a person other than the donor, for example, the donor’s lawyer or one of the attorneys appointed under the later power of attorney, including in the event that the donor becomes mentally incapable.
3: This section applies to any enduring power of attorney, whether executed before or after this section comes into force.
4: For the purposes of this section, of the same kind
a: that both powers of attorney relate to—
i: the donor’s property; or
ii: the donor’s personal care and welfare; or
b: if the earlier power of attorney relates to the donor’s property or the donor’s personal care and welfare, or both, the later power of attorney relates to both the donor’s property and the donor’s personal care and welfare. Section 95A inserted 16 March 2017 section 78 Statutes Amendment Act 2016
96: Enduring power of attorney not revoked by donor's subsequent mental incapacity
An enduring power of attorney shall not be revoked by the donor's subsequent mental incapacity, but shall continue to have effect according to its tenor.
97: Enduring power of attorney in relation to property
1: A donor of an enduring power of attorney may authorise the attorney to act generally in relation to the whole or a specified part of the donor's affairs in relation to his or her property, or to act in relation to specified things on the donor's behalf, and in either case such authorisation may be given subject to conditions and restrictions.
2: Where a donor of an enduring power of attorney authorises the attorney to act generally in relation to the whole or a specified part of the donor's affairs in relation to the donor's property, the attorney shall have authority to do anything on behalf of the donor that the donor can lawfully do by an attorney, but subject to sections 100 107
3: Where a donor of an enduring power of attorney has become mentally incapable, the attorney shall be authorised to make an application under section 87 the Registrar-General of Land
4: A donor of an enduring power of attorney may—
a: authorise the enduring power of attorney to have effect while the donor is mentally capable and to continue to have effect if the donor becomes mentally incapable; or
b: authorise the enduring power of attorney to have effect only if the donor becomes mentally incapable.
5: If subsection (4)﻿(b) applies, the attorney must not act in relation to the donor's property unless a relevant health practitioner has certified, or the court has determined, that the donor is mentally incapable. Section 97(3) added 1 July 1994 Protection of Personal and Property Rights Amendment Act 1994 Section 97(3) amended 12 November 2018 section 250 Land Transfer Act 2017 Section 97(4) added 25 September 2008 section 9 Protection of Personal and Property Rights Amendment Act 2007 Section 97(5) added 25 September 2008 section 9 Protection of Personal and Property Rights Amendment Act 2007
97A: Exercise of enduring power of attorney in relation to property
1: This section applies to an attorney acting under an enduring power of attorney in relation to the donor's property if the donor of the power becomes mentally incapable.
2: The paramount consideration of the attorney is to use the donor's property in the promotion and protection of the donor's best interests, while seeking at all times to encourage the donor to develop the donor's competence to manage his or her own affairs in relation to his or her property.
3: This section applies regardless of whether the enduring power of attorney is of the type referred to in section 97(4)﻿(a) or (b) Section 97A inserted 25 September 2008 section 10 Protection of Personal and Property Rights Amendment Act 2007
98: Enduring power of attorney in relation to personal care and welfare
1: Subject to subsections (3) and (4), a donor of an enduring power of attorney may authorise the attorney to act in relation to the donor's personal care and welfare, either generally or in relation to specific matters, and in either case such authorisation may be given subject to conditions and restrictions.
2: Notwithstanding section 95(3)
3: The attorney—
a: must not act in respect of a significant matter relating to the donor's personal care and welfare unless a relevant health practitioner has certified, or the court has determined, that the donor is mentally incapable; and
b: must not act in respect of any other matter relating to the donor's personal care and welfare unless the attorney believes on reasonable grounds that the donor is mentally incapable.
3A: For the purposes of subsection (3), a donor's mental capacity is determined—
a: at the time a decision about the matter relating to the donor's personal care and welfare is being made or is proposed to be made; and
b: in relation to the personal care and welfare matter concerned.
3B: Despite subsection (3A),—
a: if the donor is certified as mentally incapable because of a health condition that is likely to continue indefinitely, no further certificates are required under subsection (3)﻿(a) in relation to any further personal care and welfare matters:
b: if the donor is certified as mentally incapable because of a health condition that is likely to continue for a period specified in the certificate, no further certificates are required under subsection (3)﻿(a) in relation to any further personal care and welfare matters that arise during the specified period.
4: The attorney shall not act in respect of any matter relating to the donor's personal care and welfare where, if the attorney were the welfare guardian of the donor, the attorney would be denied the power to act by section 18
5: Subject to subsections (3) and (4), any action taken by the attorney in relation to the donor's personal care and welfare shall have the same effect as it would have had if it had been taken by the donor and the donor had had full capacity to take it.
6: In subsection (3)﻿(a), a significant matter relating to the donor's personal care and welfare Section 98(3) substituted 25 September 2008 section 11(1) Protection of Personal and Property Rights Amendment Act 2007 Section 98(3A) inserted 25 September 2008 section 11(1) Protection of Personal and Property Rights Amendment Act 2007 Section 98(3B) inserted 25 September 2008 section 11(1) Protection of Personal and Property Rights Amendment Act 2007 Section 98(6) added 25 September 2008 section 11(2) Protection of Personal and Property Rights Amendment Act 2007
98A: Exercise of enduring power of attorney in relation to personal care and welfare
1: This section applies to an attorney acting under an enduring power of attorney in relation to the donor's personal care and welfare.
2: The paramount consideration of the attorney is the promotion and protection of the welfare and best interests of the donor, while seeking at all times to encourage the donor to develop and exercise his or her capacity to—
a: understand the nature and foresee the consequences of decisions relating to his or her personal care and welfare; and
b: communicate such decisions.
3: Without limiting the generality of subsection (2), the attorney must—
a: encourage the donor to act on his or her own behalf to the greatest extent possible; and
b: seek to facilitate the integration of the donor into the community to the greatest extent possible.
4: When deciding any matter relating to the donor's personal care and welfare, the attorney must give due consideration to the financial implications of that decision in respect of the donor's property. Section 98A inserted 25 September 2008 section 12 Protection of Personal and Property Rights Amendment Act 2007
99: Both kinds of powers may be given
1: Nothing in section 95 section 97(1) section 98(1)
a: authorising the attorney, whether in the same or in a separate document, to act both—
i: in relation to the whole or a specified part of the donor's affairs in relation to his or her property, or to act in relation to specified things on the donor's behalf; and
ii: in relation to the donor's personal care and welfare, either generally or in relation to specific matters; or
b: giving an enduring power of attorney to any person or persons for the purposes described in subparagraph (i) of paragraph (a), and, whether in the same or in a separate document, to another person for the purposes described in subparagraph (ii) of that paragraph.
2: If subsection (1)﻿(b) applies, the attorney responsible for the donor's property must give the attorney responsible for the donor's personal care and welfare any financial support required by that attorney to carry out his or her duties in relation to the donor's personal care and welfare.
3: Subsection (2) is subject to—
a: the enduring power of attorney; and
b: any direction of the court under section 101 Section 99(2) substituted 25 September 2008 section 13 Protection of Personal and Property Rights Amendment Act 2007 Section 99(3) added 25 September 2008 section 13 Protection of Personal and Property Rights Amendment Act 2007
99A: Attorney's duty to consult
1: When acting under an enduring power of attorney, the attorney must, as far as is practicable, consult—
a: the donor; and
b: in relation to any particular matter, any person specified in the enduring power of attorney to be consulted, generally, in respect of matters of that kind, or in respect of that matter ; and
c: any other attorney appointed by the donor under the enduring power of attorney (other than a successive attorney whose appointment has not taken effect); and
d: any other attorney appointed by the donor under another enduring power of attorney (other than a successive attorney whose appointment has not taken effect).
2: An attorney acting under an enduring power of attorney in relation to the donor's personal care and welfare may, subject to any consultation under subsection (1), have regard to any advance directive given by the donor except to the extent that the directive would require the attorney to act in a manner contrary to section 98(4)
3: The attorney may follow any advice given under subsection (1), or any advance directive given by the donor, and is not liable for anything done or omitted in following that advice or directive, unless done or omitted in bad faith or without reasonable care.
4: The attorney may apply to a court for directions under section 101
5: The attorney is not liable in respect of anything done or omitted to be done in accordance with the court's directions.
6: Nothing in subsection (4) obliges the attorney to apply to a court for directions.
7: If a donor has, under an enduring power of attorney, appointed one attorney in relation to his or her property and another attorney in relation to his or her personal care and welfare, both attorneys must consult each other regularly to ensure that the donor's interests are not prejudiced through any breakdown in communication between them.
8: To avoid doubt, if the same attorney must be consulted under subsection (1)﻿(c) or (d) and subsection (7), the requirements of both subsections must be met in relation to that attorney. Section 99A inserted 25 September 2008 section 14 Protection of Personal and Property Rights Amendment Act 2007 Section 99A(1)﻿(b) amended 16 March 2017 section 79(1) Statutes Amendment Act 2016 Section 99A(1)﻿(c) inserted 16 March 2017 section 79(2) Statutes Amendment Act 2016 Section 99A(1)﻿(d) inserted 16 March 2017 section 79(2) Statutes Amendment Act 2016 Section 99A(8) inserted 16 March 2017 section 79(3) Statutes Amendment Act 2016
99B: Attorney must provide information on exercise of powers
An attorney must promptly comply with any request for information relating to the exercise of the attorney's powers under the enduring power of attorney if—
a: the person requesting the information is specified in the enduring power of attorney as a person to be provided with such information and the information requested is the kind of information specified in the enduring power of attorney to be provided to that person:
b: the person requesting the information is a barrister or solicitor appointed under section 65 section 99C Section 99B inserted 25 September 2008 section 14 Protection of Personal and Property Rights Amendment Act 2007
99C: Attorney as to property must keep records
1: An attorney under an enduring power of attorney in relation to a donor's property must keep records of each financial transaction entered into by the attorney under the enduring power of attorney while the donor is mentally incapable.
2: An attorney who fails without reasonable excuse to comply with subsection (1) commits an offence and is liable on Section 99C inserted 25 September 2008 section 14 Protection of Personal and Property Rights Amendment Act 2007 Section 99C(2) amended 1 July 2013 section 413 Criminal Procedure Act 2011
99D: Medical certification of incapacity
1: A certificate of the donor’s mental incapacity under this Part must—
a: contain the prescribed information; or
b: if the certificate is issued outside New Zealand, be in a form acceptable to the competent authority of the State concerned.
2: The donor may specify in an enduring power of attorney that the assessment of his or her mental capacity for the purposes of this Part be undertaken by a health practitioner with a specified scope of practice, but only if the scope of practice specified includes the assessment of a person's mental capacity.
3: The cost of any medical assessment or examination reasonably required for the purpose of certifying whether the donor is mentally incapable under this Part is recoverable as a debt from the donor's property. Section 99D inserted 25 September 2008 section 14 Protection of Personal and Property Rights Amendment Act 2007 Section 99D(1) replaced 16 March 2017 section 80 Statutes Amendment Act 2016
100: Enduring powers of attorney subject to personal order and property order
Where an enduring power of attorney is given by a person who is or who subsequently becomes subject to a personal order or a property order, the order shall be binding on the attorney; and, in the event of any conflict arising between the powers and duties of the attorney and the terms of the order, the order shall prevail.
100A: Suspension of attorney's power to act
1: A donor of an enduring power of attorney who has been, but is no longer, mentally incapable may suspend the attorney's authority to act under the enduring power of attorney by giving written notice to the attorney.
2: An attorney whose authority is suspended may not act under the enduring power of attorney unless a relevant health practitioner has certified, or the court has determined, that the donor is mentally incapable.
3: The suspension does not revoke the enduring power of attorney.
4: Nothing in this section affects the donor's right to revoke the enduring power of attorney while the donor is mentally capable. Section 100A inserted 25 September 2008 section 15 Protection of Personal and Property Rights Amendment Act 2007
101: Attorney may seek directions from court
1: The attorney under an enduring power of attorney may apply to a court for directions relating to the exercise of the attorney's powers.
2: Nothing in subsection (1) shall limit or affect the jurisdiction of any other court.
102: Court's jurisdiction in respect of an enduring power of attorney
1: A court shall have jurisdiction to determine—
a: whether or not any instrument is an enduring power of attorney; or
b: whether or not the donor of an enduring power of attorney is mentally incapable.
2: A court shall have jurisdiction to do all or any of the following things in respect of an enduring power of attorney where the donor has become mentally incapable:
a: determine any question as to the meaning or effect of the instrument by which the power is given:
b: determine whether or not any such instrument has ceased to have effect:
c: give directions with respect to—
i: the management or disposal by the attorney of the property and affairs of the donor; or
ii: the rendering of accounts by the attorney and the production of the records kept by the attorney for the purpose; or
iii: the remuneration or expenses of the attorney, whether or not in default of or in accordance with any provision made by the instrument, including directions for the repayment of excessive, or the payment of additional, remuneration; or
iv: any matter relating to the personal care and welfare of the donor:
v: any other matter on which the directions of the court are sought under section 101
d: modify the scope of the enduring power of attorney by including or excluding—
i: part of the donor's affairs in relation to his or her property, or any powers relating to any such affairs; or
ii: any specific matters in relation to the donor's personal care and welfare, or any powers relating to any such matters, not being a matter referred to in section 98(4)
e: require the attorney to furnish information or produce documents or things in his or her possession as attorney:
f: give any consent or authorisation to act that the attorney would have to obtain from the donor if the donor were mentally capable:
g: authorise the attorney to act, otherwise than in accordance with section 107
ga: authorise the attorney to make any loan or advance of the donor's property subject to—
i: any conditions that the court considers appropriate; and
ii: any conditions or restrictions contained in the instrument:
h: determine whether the donor of the power was induced by undue influence or fraud to create the power:
i: determine whether, having regard to all the circumstances and, in particular, the attorney's relationship with the donor, the attorney is suitable to be the donor's attorney:
j: authorise an attorney acting under an enduring power of attorney in relation to a donor's property to execute a will for and on behalf of the donor if the court is satisfied that—
i: the donor lacks testamentary capacity; and
ii: there is no express provision to the contrary in the enduring power of attorney.
2A: For the purposes of any application for the exercise of the court's jurisdiction under subsection (2)﻿(j), section 55
3: Nothing in the foregoing provisions of this section shall limit or affect the jurisdiction of any other court. Section 102(2)﻿(c)﻿(v) amended 25 September 2008 section 16(1) Protection of Personal and Property Rights Amendment Act 2007 Section 102(2)﻿(ga) inserted 25 September 2008 section 16(2) Protection of Personal and Property Rights Amendment Act 2007 Section 102(2)﻿(j) added 25 September 2008 section 16(3) Protection of Personal and Property Rights Amendment Act 2007 Section 102(2A) inserted 25 September 2008 section 16(4) Protection of Personal and Property Rights Amendment Act 2007
102A: Persons who may apply for exercise of court's jurisdiction
An application to a court for the exercise of its jurisdiction under section 102 105
a: any person listed in section 103(1)
b: any other person with the leave of the court. Section 102A inserted 25 September 2008 section 17 Protection of Personal and Property Rights Amendment Act 2007
103: Review of attorney's decisions
1: Any of the following people may at any time apply to a court to review any decision made by an attorney acting under an enduring power of attorney while the donor is or was mentally incapable:
a: the donor of the enduring power of attorney:
b: a relative or attorney of the donor (not being the attorney whose decision is sought to be reviewed):
c: a social worker:
d: a medical practitioner:
e: a trustee corporation:
f: if the donor is a patient or a resident in any place that provides hospital care, rest home care, or residential disability care within the meaning of the Health and Disability Services (Safety) Act 2001
g: any welfare guardian who has been appointed for the donor:
h: a person authorised by a body or organisation contracted by the Government to provide elder abuse and neglect prevention services.
2: Any other person may apply for a review if the court gives leave to do so.
3: For the avoidance of doubt, an application for review may be made while the enduring power of attorney is in force or after it is revoked by the death of the donor or otherwise.
4: The court may, if it thinks it reasonable to do so in all the circumstances, review the decision and make any order it thinks fit.
5: An order under subsection (4) has effect according to its tenor. Section 103 substituted 25 September 2008 section 18 Protection of Personal and Property Rights Amendment Act 2007
103A: Validity of actions under power of attorney not meeting requirements of section 94A or 95
The fact that a power of attorney is not an enduring power of attorney because of any failure to meet the requirements of section 94A 95
a: any act of the attorney done under the power of attorney in good faith with no knowledge of the failure; or
b: any transaction entered into by the attorney under the power of attorney if the other party to the transaction entered into it in good faith and with no knowledge of the failure. Section 103A inserted 25 September 2008 section 18 Protection of Personal and Property Rights Amendment Act 2007
103B: Effect of attorney's decision on third parties
A person dealing with an attorney acting under an enduring power of attorney in respect of any matter within the power of attorney—
a: does not have to inquire about the concurrence or otherwise of the donor or any other person; and
b: is not affected by notice that the donor or any other person has not concurred. Section 103B inserted 25 September 2008 section 18 Protection of Personal and Property Rights Amendment Act 2007
103C: Effect of attorney's actions, etc, before notice of revocation or suspension received
1: This section applies, instead of section 20(1) to (4) section 18
2: An enduring power of attorney continues in force until notice of an event revoking the power is received by the attorney.
3: The authority of an attorney to act under an enduring power of attorney continues in force until notice suspending that authority is received by the attorney.
4: Every act or thing within the scope of the enduring power of attorney done by or to the attorney in good faith before he or she receives notice of any event revoking the power of attorney has effect as if the event had not occurred.
5: Every act or thing within the scope of an enduring power of attorney done by or to the attorney in good faith before he or she receives notice that his or her authority to act under the power of attorney is suspended has effect as if the authority were not suspended.
6: A person dealing with the attorney may rely on a certificate of non-revocation and non-suspension of the enduring power of attorney in the prescribed form as conclusive proof of the non-revocation and non-suspension of the power of attorney as at the date of the certificate if—
a: the person—
i: is dealing with the attorney in good faith; and
ii: does not have actual knowledge that an event revoking the power of attorney has occurred, or that the attorney's authority to act under it has been suspended; and
b: the certificate—
i: is signed by the attorney or, if the attorney is a corporation, an officer or employee of the corporation authorised by the corporation for the purposes of this subsection; and
ii: is given immediately before, or any time after, the doing of a thing by the attorney.
7: A person who knowingly gives a false certificate commits an offence and is liable on
8: An event revoking the power of attorney section 106(1) Section 103C inserted 25 September 2008 section 18 Protection of Personal and Property Rights Amendment Act 2007 Section 103C(7) amended 1 July 2013 section 413 Criminal Procedure Act 2011
104: Disclaimer by attorney
1: An attorney under an enduring power of attorney may not disclaim that power otherwise than by notice given as follows:
a: where the donor is not mentally incapable, by written notice to the donor:
b: where the donor is mentally incapable, by filing a notice in a court.
2: If the donor is mentally incapable, the attorney must file with the notice a report stating—
a: that the attorney considers it is in the interests of the donor that a welfare guardian be appointed in relation to the donor's personal care and welfare, or a property manager be appointed in relation to the donor's property; or
b: that the attorney considers it is not necessary that a welfare guardian or property manager be appointed, and why the attorney considers it not necessary.
3: On receiving a report under subsection (2), the Registrar shall refer the matter to a Judge who may give to the Registrar all such directions as the Judge considers appropriate to have the matter drawn to the attention of such person or persons described in section 103 Section 104(2) substituted 25 September 2008 section 19(1) Protection of Personal and Property Rights Amendment Act 2007 Section 104(3) amended 25 September 2008 section 19(2) Protection of Personal and Property Rights Amendment Act 2007
105: Court may revoke appointment of attorney
1: The court may, in any proceeding commenced under section 101 102A 103
a: is not acting, or proposes not to act, in the best interests of the donor; or
b: is failing, or has failed, to comply with any of the attorney's obligations under section 99A 99B
1A: In any proceedings commenced under section 101 102
2: Where a court under paragraph (h) or paragraph (i) of section 102(2) Section 105(1) substituted 25 September 2008 section 20 Protection of Personal and Property Rights Amendment Act 2007 Section 105(1A) inserted 25 September 2008 section 20 Protection of Personal and Property Rights Amendment Act 2007
106: Circumstances in which enduring power of attorney
ceases
1: An enduring power of attorney shall cease to have effect when—
a: the donor , by notice in writing to the attorney,
ab: it is revoked by notice given in the manner set out in section 95A
b: the donor dies; or
ba: the donor, by notice in writing to the attorney, revokes the appointment of the attorney while mentally capable of doing so; or
bb: in the case of an enduring power of attorney that appoints more than 1 attorney with joint but not several authority, the donor, by notice in writing to one of the attorneys, revokes the appointment of that attorney while mentally capable of doing so; or
c: the attorney gives notice of disclaimer in accordance with section 104
d: the attorney dies, or is adjudged bankrupt, or becomes subject to compulsory treatment or a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992
e: in the case of an enduring power of attorney that appoints more than 1 attorney with joint but not several authority, one of the attorneys dies, or is adjudged bankrupt, or becomes subject to compulsory treatment or a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992
ea: in the case of an enduring power of attorney that appoints more than 1 attorney with several authority or with joint and several authority, the last remaining attorney—
i: has his or her appointment revoked by the donor under section 106A(1)
ii: dies, is adjudged bankrupt, becomes subject to compulsory treatment or a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992
f: a court revokes the appointment of the attorney pursuant to section 105
2: In any case where the enduring power of attorney provides for successive attorneys, the appointment of one being conditional upon the cessation of the appointment of another, subsection (1)﻿(ba) to (f) applies Section 106 heading amended 16 March 2017 section 81(1) Statutes Amendment Act 2016 Section 106(1)﻿(a) amended 25 September 2008 section 21 Protection of Personal and Property Rights Amendment Act 2007 Section 106(1)﻿(ab) inserted 16 March 2017 section 81(2) Statutes Amendment Act 2016 Section 106(1)﻿(ba) inserted 16 March 2017 section 81(3) Statutes Amendment Act 2016 Section 106(1)﻿(bb) inserted 16 March 2017 section 81(3) Statutes Amendment Act 2016 Section 106(1)﻿(d) amended 16 March 2017 section 81(4) Statutes Amendment Act 2016 Section 106(1)﻿(e) amended 16 March 2017 section 81(4) Statutes Amendment Act 2016 Section 106(1)﻿(ea) inserted 16 March 2017 section 81(5) Statutes Amendment Act 2016 Section 106(2) amended 16 March 2017 section 81(6) Statutes Amendment Act 2016
106A: Revocation of appointment of attorneys with several authority
1: If an enduring power of attorney appoints more than 1 attorney with several authority or with joint and several authority, the donor may, by notice in writing to 1 or more of the attorneys, revoke the appointment of that attorney or those attorneys while mentally capable of doing so.
2: To avoid doubt, if a donor revokes the appointment of 1 or more attorneys under subsection (1), the enduring power of attorney remains in effect if there is at least 1 remaining attorney. Section 106A inserted 16 March 2017 section 82 Statutes Amendment Act 2016
107: Attorney's power to benefit self and others
1: An attorney under an enduring power of attorney must not, at any time while the donor is mentally incapable, act to the benefit of the attorney or of a person other than the donor, or recover any expenses from the donor's property, unless and only to the extent that—
a: the donor has specified a power to so act in the enduring power of attorney; or
b: the court authorises the attorney to so act in an order under section 102(2)﻿(g) or (ga)
c: the attorney's actions relate to 1 or more of the following matters and the enduring power of attorney does not expressly provide otherwise:
i: if the attorney and donor are married to, or in a civil union or de facto relationship with, each other, and are living together and sharing their incomes, any action taken by the attorney in respect of real or personal property that the donor and the attorney own jointly and not as tenants in common:
ii: any payments of a kind described in subsection (2):
iii: if acting under an enduring power of attorney in relation to the donor's property, any loan or advance or other investment of the donor's property that a trustee could make of trust property under section 58
2: The payments referred to in subsection (1)﻿(c)﻿(ii) are payments (being payments for which receipts or other evidence are provided by the attorney) of—
a: out-of-pocket expenses (other than lost wages or remuneration) reasonably incurred by an attorney; or
b: professional fees and expenses reasonably incurred by an attorney who—
i: has accepted appointment in a professional capacity; or
ii: has undertaken work in any professional capacity to give effect to the decisions taken under the enduring power of attorney. Section 107 substituted 25 September 2008 section 22 Protection of Personal and Property Rights Amendment Act 2007 Section 107(1)﻿(c)﻿(iii) amended 30 January 2021 section 161 Trusts Act 2019
108: Procedure
For the purpose of proceedings under this Part, the provisions of Part 6 section 64 sections 83 to 85
a: where the application for the exercise of the court's jurisdiction is made by any person other than the attorney, a copy of the application shall be served on the attorney (as well as the persons listed in section 63(1)
b: where a donor has given 2 or more enduring powers of attorney and it is intended to apply to the court under this Part in respect of any 2 or more of those powers, the applications may be joined, and, subject to any rules of court
c: a court may hear and determine any proceedings before it under this Part in conjunction with any other proceedings under this or any other Part of this Act in any case where both proceedings are in respect of the same person, whether or not the parties to the proceedings are the same. Section 108(b) amended 13 September 2002 section 6 Family Courts Amendment Act 2000
108AA: Enduring powers of attorney created before Protection of Personal and Property Rights Amendment Act 2007
1: In this section, commencement date section 23
2: If an enduring power of attorney is executed but not effective before the commencement date,—
a: section 94A
b: section 95(1) and (2)
3: If an enduring power of attorney is effective before the commencement date,—
a: sections 94A 107
b: sections 95(1), (2) 107 Section 108AA inserted 25 September 2008 section 23 Protection of Personal and Property Rights Amendment Act 2007
108AAB: Review of Protection of Personal and Property Rights Amendment Act 2007
1: The Minister of State for the time being responsible for senior citizens must, as soon as practicable, 5 years after the commencement of section 23
a: review the effectiveness of the amendments to this Act made by the Protection of Personal and Property Rights Amendment Act 2007; and
b: consider whether any amendments to this Act are necessary or desirable; and
c: prepare a report on the findings.
2: The Minister must present a copy of the report to the House of Representatives no later than 6 years after the commencement of section 23 Section 108AAB inserted 25 September 2008 section 23 Protection of Personal and Property Rights Amendment Act 2007
9A: Payment of money or damages
Part 9A inserted 1 March 2002 section 170(1) Public Trust Act 2001
108A: Interpretation
In this Part,— court
a: where a claim of a specified person could be the subject of proceedings in New Zealand, a court in which proceedings could be taken to enforce the claim; or
b: where the claim could not be the subject of proceedings in New Zealand, a court in which proceedings could be taken to enforce a similar claim in New Zealand specified person Section 108A inserted 1 March 2002 section 170(1) Public Trust Act 2001
108B: Approval of court required to settle claims of specified persons
1: This section applies where money or damages are claimed by or on behalf of a specified person, whether alone or in conjunction with another person.
2: If the claim is not the subject of proceedings before a court, an agreement for the compromise or settlement of the claim entered into by the specified person, or on his or her behalf by a person who, in the opinion of a court, is a fit and proper person to do so, is binding on the specified person if the agreement, or a release of the claim, is in writing and is approved by the court under section 108C
3: If the claim has not been compromised or settled in accordance with subsection (2), and has become the subject of proceedings before a court, a settlement, compromise, or payment, or acceptance of money paid into court, whenever entered into or made, is valid so far as it relates to the specified person's claim only with the approval of the court under section 108C 1957 No 36 s 66(1) Section 108B inserted 1 March 2002 section 170(1) Public Trust Act 2001
108C: Applications for approval of court
1: An application for the approval of a court under this section may be made by or on behalf of a specified person, or by any other party to the agreement or proceedings.
2: On an application for its approval under this section, the court, in its discretion, may—
a: refuse the application; or
b: grant its approval unconditionally; or
c: grant its approval subject to any conditions and directions that it thinks fit, including conditions and directions as to—
i: the terms of the agreement, compromise, or settlement; or
ii: the amount, payment, security, application, or protection of the money paid, or to be paid; or
iii: any other relevant matter. 1957 No 36 s 66(2), (3) Section 108C inserted 1 March 2002 section 170(1) Public Trust Act 2001
108D: Money or damages may be held upon trust
1: Without limiting section 108C
2: The amount must be invested and held by the trustee upon trust—
a: to make payments to any person out of the income and capital of the amount as directed by the court; and
b: to apply the income and capital of the amount, or so much of the income and capital as the trustee from time to time thinks fit, for or towards the maintenance or education (including past maintenance or education) or the advancement or benefit of the specified person.
3: The specified person has no power, either alone or in conjunction with any other person or persons, to terminate the trusts upon which the amount is held or to modify or extinguish those trusts.
4: The interest of the specified person in the income and capital of the amount must not, while it remains in the hands of the trustee, be alienated or pass by bankruptcy, or be liable to be seized, sold, attached, or taken in execution by process of law.
5: This section applies subject to—
a: any direction of the court that an immediate payment be made from the money or damages; and
b: any other direction or condition given or imposed by the court. 1957 No 36 s 66(4) Section 108D inserted 1 March 2002 section 170(1) Public Trust Act 2001
108E: Money or damages held by manager
1: Without limiting section 108C(2)
2: A manager who holds money or damages under a direction given under subsection (1) does so with and subject to the powers and discretion conferred upon a manager by this Act. 1957 No 36 s 66(5) Section 108E inserted 1 March 2002 section 170(1) Public Trust Act 2001
108F: Termination of trust
1: Where a specified person attains the capacity to manage his or her own affairs while any amount is held on trust for his or her benefit under section 108D
2: At any time before the payment is made, the court may order that the whole or any part of the amount must continue to be held on trust under section 108D
3: Where the trustee has made an application or received notice that an application has been made to the court for an order that the amount must continue to be held on trust, the trustee must not make any payment under this section until the application has been disposed of. 1957 No 36 s 66(6) Section 108F inserted 1 March 2002 section 170(1) Public Trust Act 2001
108G: Part does not affect Deaths by Accidents Compensation Act 1952
Nothing in this Part limits or affects the Deaths by Accidents Compensation Act 1952 1957 No 36 s 66(9) Section 108G inserted 1 March 2002 section 170(1) Public Trust Act 2001
10: Miscellaneous provisions
109: Orders may be registered
1: A property order may be registered under the Deeds Registration Act 1908
2: A property order shall be deemed to be an instrument purporting to affect land under the Land Transfer Act 2017 registered owner
3: A trustee corporation that becomes the manager of a person's property under section 32 section 33 Deeds Registration Act 1908 Land Transfer Act 2017 Section 109(2) amended 12 November 2018 section 250 Land Transfer Act 2017 Section 109(3) amended 12 November 2018 section 250 Land Transfer Act 2017
110: Remission of fees in cases of hardship
Where it appears to the Registrar of a court that the payment of any fees prescribed as payable in respect of any proceedings under this Act, or of those fees in full, would cause undue hardship to the person liable for their payment, the Registrar may remit the whole or such part of the fees as the Registrar thinks fit, and may, without further appropriation than this section, refund all such fees that have already been paid or any part of such fees.
111: Rules of procedure
Rules may be made regulating the practice and procedure of courts in proceedings under this Act,—
a: in the case of the High Court, under section 148
b: in the case of the District Court, under section 228
c: in the case of the Family Court, under section 16A Section 111 substituted 13 September 2002 section 6 Family Courts Amendment Act 2000 Section 111(a) amended 1 March 2017 section 183(b) Senior Courts Act 2016 Section 111(b) replaced 1 March 2017 section 261 District Court Act 2016 Section 111(c) replaced 1 March 2017 section 261 District Court Act 2016
111A: Transitional provision relating to rules
1: Subsections (2) and (3) apply to rules made under section 111
2: Rules to which this subsection applies that regulate the practice or procedure of the High Court continue to regulate the practice and procedure of the High Court until any rules referred to in section 111(a)
3: Rules to which this subsection applies that regulate the practice or procedure of the District Court District Court section 111(b) Section 111A inserted 13 September 2002 section 6 Family Courts Amendment Act 2000 Section 111A(3) amended 1 March 2017 section 261 District Court Act 2016
112: Regulations
1: The Governor-General may from time to time, by Order in Council, make regulations—
a: making provision for the determination of the amount of fees and expenses, including minimum and maximum amounts, payable in respect of professional services provided by lawyers section 65
b: making provision for the determination of the amount of fees and expenses, including minimum and maximum amounts, payable in respect of the preparation of reports requested pursuant to section 76
ba: prescribing forms for enduring powers of attorney for the purposes of Part 9
bab: prescribing a form of standard explanation for the purpose of explaining the effects and implications of an enduring power of attorney to a donor (which may include requirements for the content of the explanation and the manner in which it is to be given) under section 94A(6)
bb: prescribing forms for certificates for the purposes of the witnessing requirements in section 94A(7)
bc: prescribing information required for certificates for the purposes of any medical examination or assessment under Part 9
bd: prescribing forms that may be used for the suspension and revocation of enduring powers of attorney for the purposes of Part 9
be: prescribing the form for the certificate of non-revocation and non-suspension of the enduring power of attorney for the purposes of section 103C(6)
c: providing for such other matters as are contemplated by or necessary for giving full effect to the provisions of this Act and for its due administration.
2: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 112 substituted 1 July 1994 Protection of Personal and Property Rights Amendment Act 1994 Section 112(1)﻿(a) amended 31 March 2014 section 10 Protection of Personal and Property Rights Amendment Act 2013 Section 112(1)﻿(ba) inserted 26 September 2007 section 24 Protection of Personal and Property Rights Amendment Act 2007 Section 112(1)﻿(bab) inserted 16 March 2017 section 83(1) Statutes Amendment Act 2016 Section 112(1)﻿(bb) inserted 26 September 2007 section 24 Protection of Personal and Property Rights Amendment Act 2007 Section 112(1)﻿(bc) replaced 16 March 2017 section 83(2) Statutes Amendment Act 2016 Section 112(1)﻿(bd) inserted 26 September 2007 section 24 Protection of Personal and Property Rights Amendment Act 2007 Section 112(1)﻿(be) inserted 26 September 2007 section 24 Protection of Personal and Property Rights Amendment Act 2007 Section 112(2) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
113: Reference to Aged and Infirm Persons Protection Act 1912 and Part 7 of the Mental Health Act 1969 in other Acts
Unless the context otherwise requires, in any other enactment, or in any regulation, rule, order, agreement, deed, instrument, application, or other document in force at the commencement of this Act every reference to the Aged and Infirm Persons Protection Act 1912 Part 7 of the Mental Health Act 1969
114: Savings
Nothing in this Act shall limit the general jurisdiction of the High Court under section 14 Section 114 amended 1 March 2017 section 183(b) Senior Courts Act 2016
115: Maori Affairs Act 1953 amended
Section 115 repealed 1 July 1993 section 362(1) Te Ture Whenua Maori Act 1993
116: Repeals
The enactments specified in Schedule 4
117: Transitional provisions
1: Subject to subsections (2) and (4), but notwithstanding any other provision of this Act, all proceedings commenced under the Aged and Infirm Persons Protection Act 1912 Part 7 of the Mental Health Act 1969
2: If an interim protection order has been made under section 29A of the Aged and Infirm Persons Protection Act 1912
3: On the commencement of this Act, every protected person under the Aged and Infirm Persons Protection Act 1912 Part 7 of the Mental Health Act 1969
4: Where, in proceedings to which subsection (1) applies, a person becomes a protected person under the Aged and Infirm Persons Protection Act 1912 Part 7 of the Mental Health Act 1969
4A: Every person who is deemed by subsection (3) or subsection (4) to be a manager appointed under this Act shall, subject to any order of the court made on an application filed under this Act, have all the powers set out in Schedule 1
5: Within 3 years after the commencement of this Act, every person, other than a trustee corporation, who is deemed by subsection (3) or subsection (4) to be a manager appointed under this Act shall apply to a court in accordance with section 87
6: Within 1 year after the commencement of this Act, every trustee corporation who is deemed by subsection (3) or subsection (4) to be a manager appointed under this Act shall notify a court of each case, and the court and the trustee corporation shall draw up a programme in accordance with regulations made under this Act for the progressive review of all such cases.
7: The repeal by section 116
8: The repeal by section 116 section 90 of that Act
9: Nothing in section 45(2)﻿(a)
10: For the purposes of section 45(2)﻿(b)
a: a person who was the manager of the estate of a protected person under the Aged and Infirm Persons Protection Act 1912
b: a person who was the manager of the estate of a protected patient under Part 7 of the Mental Health Act 1969 Section 117(4A) inserted 12 December 1989 Protection of Personal and Property Rights Amendment Act 1989