Could it happen in New Zealand?

The American entertainer Britney Spears' conservatorship has recently been in the headlines. She is asking American courts to reconsider the conservatorship which has been in place for some years.

A conservatorship is like a guardianship in New Zealand - a court puts a legal arrangement in place to give a third party control over a person's affairs if they lack mental capacity in some way.

Britney has claimed that her conservatorship has:

•    Forced her to work, against her wishes, for a number of years

•    Enriched her conservators, who are paid a substantial income, and

•    Prevented her from taking control of, or making decisions about, her own life.

In mid-August, Britney's father stepped down from his role as conservator; he will work with the court in the appointment of a new conservator for his daughter.

Could this happen in New Zealand?

Many people in New Zealand have Enduring Powers of Attorney (EPAs) that allow them to decide in advance who will take control of their affairs if, or when, they lose mental capacity. It is when a person does not have EPAs that the Family Court will often become involved and can appoint people to make decisions on that person's behalf. These kinds of appointments are common in New Zealand. However, there are many safeguards, as set out in column 4 of this article, that ought to prevent the kind of abuse Britney claims to have suffered.

The Protection of Personal and Property Rights Act 1988 (PPPRA) allows the Family Court to intervene in relation to a person's personal care and welfare (where they live, medical treatment, etc) and in relation to their property. The court can only intervene when medical evidence shows that a person is unable to look after themselves, including making decisions about their future and their property.

The PPPRA contains what is known as the 'minimum intervention principle.' When making orders, the court is required to make the least restrictive intervention possible in a person's life. Any orders which are made must enable that person to exercise and develop any capacity they may have, to the greatest extent possible.

Personal care and welfare

The Family Court can make specific decisions about a person's care and welfare, such as directing that they live in a certain place or it can appoint a welfare guardian. 

Appointing a welfare guardian is a significant restriction on a person's autonomy; an appointment will only be made when a person wholly lacks capacity or does not have the ability to communicate, and when there is no other satisfactory way to ensure decisions are made. If a person only partly lacks capacity and can communicate their preferences, the court can only make specific orders about their welfare, such as an order that they live in a certain place or receive certain medical treatment. It cannot appoint someone to make all decisions.

Property

The Family Court may appoint a property manager when a person wholly, or partly, lacks capacity to manage their own affairs in relation to their property. However, s25 of the PPPRA, states that a person does not lack capacity simply because they make, or intend to make, imprudent decisions in relation to their property.

When appointing a property manager, the court considers the minimum intervention principle. It can appoint a manager in relation to only some part of the person's property, rather than in relation to all the property the person holds. It can also give limited powers to a property manager. There are a number of restrictions on a manager making decisions about property worth more than $120,000.

Unless the court approves, property managers are not allowed to be paid. If a fee is paid, this would usually be very limited, even for a professional manager, such as a trustee corporation.

A property manager or welfare guardian cannot force a person to work, and if either of those people signed a contract requiring the person to work against their wishes, the person could ask the court to review that decision and/or appoint different managers.

Safeguards

The PPPRA has a number of safeguards built in to protect the person. Each time an application is made to the Family Court for orders under the PPPRA, the court must appoint a lawyer (usually state-funded) to represent that person's interests. That lawyer has duties to:

•    Contact and meet with the person

•    Explain the nature and purpose of the application

•    Ascertain that person's wishes, and

•    Evaluate possible solutions, including the minimum intervention principle.

The appointed lawyer represents a significant safeguard, and is present every time a PPPRA case is before the court. They report to the court on what the person wants and their capacity.

They can propose a new capacity assessment if, for example, they think the person has become capable of managing their own affairs.

In addition to this, welfare guardianship and property orders must be reviewed every three years (in some cases, every five years). The court reviews the matter, usually obtains an updated capacity assessment, and appoints a lawyer to act for the person and reports back to the court.

Britney in New Zealand?

It seems less likely that someone in this country would end up in Britney's position. If Britney lived in New Zealand and was subject to the PPPRA, the court would review her situation every few years, and her views would be put forward by an independent lawyer. If Britney thought she had capacity, the court could order a medical review. If Britney wanted control of her own affairs, or a different person in charge, the court would be obliged to take this into account. There are a number of safeguards built into the New Zealand system which would help prevent Britney's current situation in the US from arising.


DISCLAIMER: All the information published in Trust Speaking is true and accurate to the best of the authors' knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this article. Views expressed are those of individual authors, and do not necessarily reflect the view of this firm. Articles appearing in Trust Speaking  may be reproduced with prior approval from the editor and credit given to the source.  Copyright, NZ LAW Limited, 2019. Editor: Adrienne Olsen. E-mail: adrienne@adroite.co.nz. Ph: 029 286 3650 or 04 496 5513.