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When a family member loses capacity.
Your parent has dementia. Your spouse has had a stroke. Someone you love can no longer manage their own affairs, and there's no EPA in place. What now?
You are not alone in this.
This is one of the most common situations we help families with. Many people don't put EPAs in place until it's too late. The good news is there is a legal pathway forward.
The Protection of Personal and Property Rights Act 1988 provides for court-appointed property managers and welfare guardians when EPAs don't exist. The process takes time and costs money, but it gives your family the legal authority you need.
What authority do you need?
The type of order depends on what decisions need to be made. Often families need both.
Property Manager
Authority to manage financial affairs
- Access bank accounts
- Pay bills and expenses
- Manage investments
- Sell property (with court approval)
- Deal with KiwiSaver, insurance, pensions
Welfare Guardian
Authority to make personal care decisions
- Medical treatment decisions
- Where the person lives
- Level of care provided
- Daily life matters
- Moving to rest home care
The court application process.
Applications are made to the Family Court under the PPPR Act. Here's what the journey looks like.
Initial consultation
We assess your situation and explain your options
Gather evidence
Medical certificate, asset information, family details
Prepare application
Court documents, affidavits, supporting materials
File with court
Application lodged with Family Court
Court review
Court-appointed lawyer investigates and reports
Orders made
Court issues orders; you can start acting
Evidence required.
The court needs to be satisfied that the person lacks capacity and that orders are necessary.
-
Medical certificate
From a GP or specialist confirming the person's mental state and inability to make relevant decisions
-
Information about the person
Their living situation, care needs, assets, and income
-
Your suitability
Why you are an appropriate person to be appointed
-
Family views
Other family members may need to be notified and given opportunity to comment
Realistic timeframes and costs.
We believe in being upfront about what's involved. The court process is not quick, and it's not cheap. But it's achievable.
| Aspect | Typical Range |
|---|---|
| Application timeframe | 4-8 months (longer if complex) |
| Interim orders (urgent) | 2-4 weeks in urgent cases |
| Legal costs | Variable - we explain upfront |
| Court filing fee | No court fee for these applications |
| Court-appointed lawyer | Covered by Legal Aid |
Urgent situations
If decisions need to be made urgently, the court can make interim orders lasting up to 6 months while the full application is processed. This is common when immediate medical or care decisions are needed.
Common situations we help with.
Selling property for rest home care
Your parent needs to move to residential care but their home needs to be sold to fund it. Without authority to sell, you are stuck.
Accessing bank accounts
Your parent can no longer manage their finances. Bills are going unpaid. You can't access their accounts to help.
Making medical decisions
A significant medical decision needs to be made and your loved one can't consent. Family agreement isn't enough.
Managing a business or farm
Your parent ran a business or farm. Critical decisions need to be made, contracts signed, or the operation sold.
Moving someone into care
Your loved one needs more care than they're getting at home, but they're resisting the move.
Protecting from exploitation
You are concerned someone is taking advantage of your vulnerable family member's situation.
After orders are made.
Court-appointed managers and guardians have ongoing obligations. Understanding these upfront helps you decide if you can take on the role.
Property managers must:
- File a report with the court within 3 months of appointment
- File annual accounts for the duration of the appointment
- Keep the person's money separate from their own
- Get court approval for significant transactions like property sales
- Act in the person's best interests, not the family's convenience
Welfare guardians must:
- Consult with the person as far as practicable
- Act in the person's best interests
- Consider the person's known wishes and preferences
- Apply for renewal before the order expires (usually 3 years)
Order duration
Orders usually last 3 years, sometimes 5 years for stable situations. Before they expire, you need to apply for renewal if the person still needs support.
What about the rest of your family?
If one parent has lost capacity, it's worth thinking about planning for the other. This is a natural time to consider EPAs for the surviving partner, to avoid going through this process again.
We can help with that planning at the same time as handling the current crisis.
Key Takeaways
Without an EPA, court orders are needed to manage someone's affairs
Applications take 4-8 months; urgent matters can get interim orders
Property managers handle finances; welfare guardians handle care decisions
Court-appointed managers have ongoing reporting requirements
Orders last 3-5 years and need renewal
Consider EPAs for other family members at the same time
Related Guide
Learn how to set up EPAs to prevent this situation from happening in your family.
Read the Choosing Your EPAs GuideRelated Reading
What happens if you lose capacity without an EPA
Without an EPA, your family must apply to court for authority to manage your affairs. This is expensive, slow, and intrusive.
Choosing Your Attorneys: A Guide for New Zealanders
The most important EPA decision is who you appoint. Here's how to think through your options for both property and personal care attorneys.