An ANZASW Practice Note for Social Workers Working with the
Protection of Personal and Property Rights Act 1988
Written by the ANZASW Social Work and Protection of Personal and Property Rights Act Working Group
Working Group Acknowledgement Working Group Members: Marie Bennett, Michelle Derrett, Malcolm Foster, Donna Murphy, Ross Kelly, Stacy Muir, Lorraine Sayers, Karen Stack, Caz Thomson, Judith Wilson-Parr and Anastacia Grant (facilitator). This current working group has stayed with this project for just over two years. Each person has generously given their time and knowledge to this project, waited out the doldrums, and respectfully argued their case when necessary. Thank you all for your work and patience. Thanks also to the agencies that have supported their social workers in contributing to this work.
1.1. Aim of the Practice Note 1.2. About the Practice Note 1.3. Legislation promoting and protecting personal and property rights 1.4. A description of Personal Orders, Property Orders and Enduring Powers of Attorney as
prescribed by the PPPR Act 1.5. Social workers promoting and protecting personal property rights 1.6. The least restrictive intervention
2. Social Work Practice
2.1. Introduction 2.2. The social work practice in relation to the PPPR Act 2.3. The social work role and responsibilities when the client’s capacity is being questioned 2.4. The social work role and responsibilities to clients when an EPOA is activated 2.5. The social work role and responsibilities to clients when a Social Worker is acting or appointed to
act under the PPPR Act
3. Social Work Professional Accountability 3.1. Social work competencies for working with the PPPR Act
3.2. Agency policy and procedures related to working with the PPPR Act 3.3. Te Tiriti o Waitangi responsibility
4. Practice Examples
4.1. Example from practice: where a social worker is an applicant for an order under the PPPR Act 4.2. Example from practice: where a social worker is engaged with Tangata Whenua 4.3. Example from practice: where a social worker is working with the family
5. Resources and Other Resources
6. Capacity Note
7. Appendices
8. Glossary of Terms
9. Sample Forms 9.1. Health practitioner’s certificate of mental incapacity for enduring power of attorney in relation to
property 9.2. Guidelines for health practitioners completing certificate of mental incapacity (enduring power of
attorney in relation to property) 9.3. Health Practitioner’s certificate of mental incapacity for enduring power of attorney in relation to
care and welfare
9.4. Guidelines for health practitioners completing certificate of mental incapacity (enduring power of attorney in relation to care and welfare)
1.1 Aim of the Practice Note The aim of this practice note is to gather the knowledge available in the social work community and to bring it together in order to provide social workers responsible for delivering social work services in this field with a useful and reliable set of guidelines for practice. The practice note may also be of interest to those who work alongside, or in participative ways, when helping promote and protect personal and property rights. The practice note is intended to offer a social work understanding of issues and practice considerations and to stimulate thinking about issues raised when social workers work in this field. It is primarily a starting point for social workers to explore what it means to promote and protect personal and property rights and the practice note contains a range of references and other resources, which it is hoped, will support social workers in doing this. It is important to be clear that this practice note does not aim to be a definitive guide to all the issues that may arise in relation to social workers consulting and working with promoting and protecting personal and property rights. Further the practice note does not provide easy answers to issues that will continue to arise and need resolution. We recommend social workers working with this legislation not only be familiar with this practice note but also consult with colleagues and make use of supervision and legal advice.
1.2 About the Practice Note This practice note is produced to accompany both the Protection of Personal and Property Rights Act 1988 and its amendments (PPPR Act) and The Code of Ethics of Aotearoa New Zealand Social Work Association (Appendix 2) (Code of Ethics)
Promoting and protecting the personal and property rights of people who are not fully able to manage their own personal care and welfare and or property is work that social workers are engaged in, particularly when their clients are adults who may not be wholly or partly able to manage their own affairs.
Social workers in Aotearoa New Zealand practice in diverse environments and have cause to apply various practice mandates to their work. The practice of social work, in private practice, statutory and through to non-governmental and not-for-profit agencies is as disparate as the people that deliver it. With this in mind this practice note, which is endorsed by Aotearoa New Zealand Association of Social Workers (ANZASW), has been developed to offer a social work “understanding” of issues and practice considerations for social workers whose work requires them to know and use the PPPR Act. The Code of Ethics underpins this practice note and as one of the two key references for this document it provides a definitive, systematic statement on ethical social work.
Members advocate social justice and principles of inclusion and choice for all members of society, having particular regard for disadvantaged minorities. They act to prevent and eliminate discrimination against any person or group based on age, beliefs, culture, gender, marital, legal or family status, intellectual, psychological and physical abilities, race, Religion, sexual orientation, and social or economic status.
(2.4 The Code of Ethics of ANZASW)
The PPPR Act provides for the protection and promotion of personal and property rights of people who are wholly or partly able to manage their own affairs. The PPPR Act can assist when a person has lost the capacity to make or understand decisions about their own personal care and welfare and or property, or when they are no longer be able to tell other people what they have decided. Further to this the PPPR Act can assist people who are seeking to ensure the protection of their personal and or property rights through the Enduring Powers of Attorney (EPOA) provisions. The PPPR Act is the legislation that provides the procedures and accountabilities for the raft of people (lay and professional) who engage in the activities related to promoting and protecting personal and property rights. The PPPR Act is the second key reference for this practice note and it clearly directs action in this field of work.
… 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.
(Part 1, section 5, PPPR Act)
1.3 Legislation promoting and protecting personal and property rights. The PPPR Act is Aotearoa New Zealand's significant piece of legislation; (see Appendix 1.for other relevant legislation) to help people when they have lost the capacity to make or understand decisions about their own personal care and welfare or property, or when they are no longer able to tell other people what they've decided. The PPPR Act gives authority to the court to appoint people to promote and protect personal and property rights if a person is proved to be incapable of making decisions for themselves. The EPOA provisions of the PPPR Act allow people to decide in advance who they would like to make decisions for them if they become medically or mentally incapable of making decisions for themselves.
1.4 A description of Personal Orders, Property Orders and Enduring Powers Of Attorney as prescribed by the PPPR ACT.
Personal Orders These are orders made under Part 1, section 10,11 or 12 of the PPPR Act and includes interim orders made under section 14 of the PPPR Act (Section 10, PPPR Act). A personal order may be applied for if a person; a) Lacks, wholly or partly, the capacity to understand the nature, and foresee the consequences, of decisions in respect of matters relating to his or her personal care and welfare. b) Has the capacity to understand the nature, and 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.
Orders are applied for through the Family Court when an adult is deemed to be fully or partially lacking mental capacity and there is no EPOA in place (Part 1, section 6, PPPR Act). An application for a personal order is made to the Family Court. There are a range of personal orders that can be sought and the applicant will seek the appropriate order to address the person's specific need. The Court can make further orders to give effect to or to better the effect of a personal order.
The types of personal orders made under section 10 vary and include but are not limited to orders that; arrange for personal care of a person following a parents death, attend to entry, attending or leaving a particular institution, make provision for medical advice or treatment. Sector 10 also provides for personal orders to be made under section 11 (property administrator) and section 12 (welfare guardian). Interim Orders are made under section 14, these orders can be made if it is necessary (serious hardship, injury or risk), pending determination of final orders.
Personal Orders expire at a named date or, if no review is sort before the named date, at 12 months from date of making the order (section 17, PPPR Act). The exceptions are an order for a Welfare Guardian and an Interim Order. In an order for a Welfare Guardian “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, (8), PPPR Act). No Interim Order shall continue in force for more than 6 months after the date on which it is made (section 14, (3) PPPR Act).
Important Information related to Personal Orders A medical report is required to accompany an application stating that this person does not have
full/partial capacity and why the practitioner has diagnosed that the person does not have capacity.
Under the PPPR Act, the Family Court will only make a Personal Order where there is a very significant degree of impairment present. In lesser degrees of impairment, the Family Court is
generally reluctant to make a ruling as this could be seen as excessive interference in the person’s life.
Section 8, PPPR Act clearly states that the primary objectives in the making of orders are that they are the least restrictive intervention possible in the life of the person, that (having regard to the degree of their incapacity) a person shall be enabled or encouraged to exercise and develop such capacity as he or she has to the greatest extent possible.
To protect a person’s rights they are entitled to legal representation. Counsel for the person is appointed by the court and this is usually free (unless the person has substantial assets).
Property Orders A property order is made under Part 3, sections 30 and 31 of the PPPR Act. A Property Order can be applied for when 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 in respect to 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.
Temporary Orders (section 30) These are made when an application for a property manager has been made or is to be made, and there
are reasonable grounds for believing that the person may be a person to whom the Court has jurisdiction and that it is in the best interest of the 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 exercise.
Temporary orders are made with conditions that mean the person subject to the order does not have to be served with a copy of the application, is not entitled to attend or be heard at the hearing, unless the Court orders otherwise. No temporary order may continue in force for more than 3 months from the date it is made.
Order for appointment of a Property Manager (section 31),
This order can be made appointing one or more people to act as manager of the property, or any specific part of the property, of the person in respect of whom the application is made. A trustee corporation may be appointed as property manager under this section of the act.
Order to Administer Property Important Information related to Property Orders
Section 28 of PPPR Act clearly states that the primary objectives in the making of orders are that they are the least restrictive intervention possible in the management of the affairs of the person in respect of whom the application is made (having regard to the degree of that person's lack of competence), and a person be enabled or encouraged to exercise and develop such competence as he or she has to manage his or her own affairs to the greatest extent possible.
To protect a person’s rights they are entitled to legal representation. Counsel for the person is appointed by the court and this usually free (unless the person has substantial assets).
In an order for a Property Manager “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 (8) PPPR Act).
All expenses properly incurred by the property manager shall be payable out of the property of the person. No property manager is entitled to remuneration for his or her services unless the Court otherwise directs (section 50, PPPR Act).
Enduring Powers of Attorney (Part 9, PPPR Act) The PPPR Act enables a competent adult to appoint another person to make decisions about their personal care and welfare and/or property in the event that they become mentally incapable. This is called Enduring Powers of Attorney (EPOA)
An EPOA is made when an adult is mentally capable, i.e. any mentally capable adult can make an EPOA.
EPOA: (2 types)
1. EPOA for personal care and welfare, only one person may be appointed. 2. EPOA for property. One or more persons, or an organisation may be appointed.
The same person may be appointed to be EPOA for both personal care and welfare and also for property. EPOA for both personal care and welfare and also for property can also be separate people.
Important Information about EPOA There is no application to the Family Court to make an EPOA, but there are standard Sample Forms set out by the PPPR Act that must be completed.
EPOA in relation to property can be authorised to have effect while the person (the donor) is mentally capable or can be authorised to only take effect if a person becomes mentally incapable.
EPOA in relation to personal care and welfare only becomes effective when the person is certified by a relevant health practitioner as mentally incapable. There are standard Sample Forms set out by the PPPR Act that must be completed.
An EPOA can be suspended and an EPOA can be revoked (Section 106, PPPR Act)
If a person has not given an EPOA and can no longer make decisions for himself or herself, relatives and others can apply to the Court under the PPPR Act for the Court to make specific orders for the protection of personal and property rights for that person. The description of orders above includes personal orders to cover matters such as where they will live, welfare guardianship etc. The Court will also consider applications to appoint someone as a property manager to promote and protect property rights.
1.5 Social Workers promoting and protecting personal and property rights.
There are many understandings of what it means when a social worker steps into the role of working to promote and protect personal and property rights. The community or family may have some general understanding of this as “taking over” a person’s affairs because the person cannot do this anymore; an agency may be focused on the protection of personal and property rights; the profession may be encouraging promotion of personal and property rights; and the client may or may not understand what will happen for them. What does it mean to be a social worker promoting and protecting personal and property rights? It means;
Knowing that your agency, service or profession gives you, the social worker, the right to work in promoting and protecting another person’s personal and or property rights.
knowing that your agency, service or profession will have policies and practice standards related to how this work will be carried out,
engaging your client, listening to their views and opinions and working to ensure their best interest is the focus of your work,
consulting with families, client’s friends, colleagues and allied professionals and enlisting their help for the purposes of informing practice and service delivery,
understanding the legislation, knowing there are rules, procedures and accountabilities that must be adhered to,
ensuring that your work is as transparent as possible,
The Code of Ethics and PPPR Act both advocate the least restrictive intervention. This imperative must focus the social work task in this work even when there is an agency difference, allied service pressure or even personal belief that doing “this or that” will give a better outcome.
In part 1, section 5 of the PP PR Act the presumption of competence is defined. In section 8 of the PPP R Act the primary objects clearly direct the court, “… to make the least restrictive intervention possible in the life of the person...”, and it goes on to direct practices that “...enable and encourage that person to exercise and develop such capacity as he or she has to the greatest extent possible”.
The Code of Ethics (Appendix 2) guide social work practice:
to prevent and eliminate discrimination (2.3),
maintain professional objectivity (3.4)
Work in ways that encourage and enable self-determination (3.10). Clients are the social worker’s first priority, so when working in situations where compulsion is brought to
bear or where a person's lack of capacity is identified the social worker must offer the least restrictive intervention and promote self-determination regardless of how comparatively nominal this may appear.
The PPPR Act is a tool to provide for the protection and promotion of the personal and property rights of persons who are not fully able to manage their own affairs. Like all legislative tools it can be over and under used, but when social work is involved with the PPPR Act a client focus and social work analysis will enable and encourage a client’s self-determination to the greatest extent possible.
The role of a social worker, as defined in the Code of Ethics and Practice Standards, is to support the client to achieve self-fulfillment and maximum potential within the limits of the equal rights of others. Social workers are guided by the principles of Te Tiriti o Waitangi – participation, partnership and protection. One of the challenges social workers face is to maintain vulnerable client’s rights. One means of doing this (but not the only one) is the PPPR Act. This is a challenging piece of legislation to work with and so this practice note has been developed by members of ANZASW to guide and assist social workers to better understand their rights and responsibilities under the PPPR Act. These guidelines do not replace the need for legal guidance. They are about upholding the ethics and values of social work in Aotearoa.
2.2 The social work practice in relation to the PPPR Act: 2.2.1 In relation to working with the PPPR Act a social worker will understand “ the client” as the
person who is “the subject” of work to promote and protect personal and property rights (i.e. the 'subject person” of a personal or property order, the “donor” of EPOA).
2.2.2 The social worker will encourage clients to exercise and develop such capacity as he or she has to the greatest extent possible, for example,
2.2.2.1 Encourage competent clients to appoint an EPOA to ensure they choose who will make decisions for them in the future if they should lose capacity.
2.2.2.2 Encourage a client with reduced capacity to make decisions and action these even when the out-comes may not be deemed prudent by others.
2.2.3 A social worker will endeavour to inform parties (i.e. clients, family members, the public and allied professionals) about the impact and implications of PPPR Act. This should be in clear understandable language and include (but not limited to) supplying material and interpreters consistent with a person's preferred language.
A social worker will recognise how to apply the legislation in relation to orders and EPOA in a way that is meaningful for the client and their particular situation. It is the actual applying of the legislation as social workers that enables social workers to be a comprehensive resource for clients and their families.
2.2.4 A social worker will work to ensure the appropriate processes and procedures are in place to support any action/intervention with a client and be responsive to changing needs.
2.2.5 Where there is no EPOA or court appointed welfare guardian the social work role and responsibilities for the client centre around maximising whatever autonomy may be retained, and maximising principles of protection where the client clearly lacks capacity.
2.2.6 A social worker will attend relevant training and make themselves familiar with the Acts and Codes of Rights applicable to the needs of the person with whom they are working. Professional development in this field could include (but not be limited to) liaison with more experienced social workers, PPPR Act specific supervision, participation in inter/multidisciplinary teams.
2.2.7 Social workers using this legislation should not work in isolation and should involve others, including other health professionals and relevant interested parties in decision making.
2.2.8 A social worker will have knowledge of other relevant legislation. 2.2.9 A social worker will, as far as they are able, ensure that an EPOA is not acted on before it is
activated. EPOA for Care and Welfare can be activated only when a person is deemed to lack capacity. (NB, an assessment of a person’s capacity can only be made by health practitioners within whose scope of practice such determinations are made as per section 98, (3a) PPPR Act). EPOA for Property can be activated immediately by the donor (Glossary of Terms) or when a person is deemed to lack capacity, again (NB, an assessment of a person’s capacity can only be made by health practitioners within whose scope of practice such determinations are made as per section 97, (5) PPPR Act).
2.2.10 The social worker will advocate for their client and also respect the views of those engaged in supporting the client.
2.3 The social work role and responsibilities when the client’s capacity is being questioned.
2.3.1 As directed in the Code of Ethics social workers should only participate in the use of compulsion when there is a clear professional justification for that course of action. Social workers will be competent to have conversations about issues of client capacity with others involved in the client’s care, including the inter/multidisciplinary team. NB. It may not be necessary to apply for any formal protection – for example– if a person is accepting of necessary supports, is not in a locked facility, has someone as an appointee for WINZ and a joint bank account, then even if they are not competent and without EPOA, a personal order is unlikely to be required.
2.3.2 Social workers will use professional judgement to balance the human rights of the client to live independently with the social worker’s responsibility to the wider community and duty of care, for example, this issue may arise when a person is driving unsafely.
2.3.3 In working with clients whose capacity is under question, all social workers, both private and
publicly funded, are bound to follow the Health and Disabilities Commission Code Of Rights which includes principles of; dignity, respect, fair treatment, support and duty of care.
2.3.4 Being informed by the principles of the PPPR Act the social worker will treat the client as having capacity until this is proved otherwise. All of the PPPR act principles apply:
1) Protection of those who cannot protect themselves, 2) Minimisation of stigma, 3) Presumption of competence, 4) Recognition of varying capabilities of individuals, 5) Normalisation and integration, 6) Least restrictive alternative, 7) Maximisation of self-determination and self-reliance, 8) Maximisation of capabilities, 9) Due process in the restriction of rights.
2.3.5 The social worker should work, where possible, as a catalyst, or advocate for the client’s independence and freedom of choice. If this independence and freedom of choice is restricted due to incapacity, the social worker should only act in the area of deficit, and be mindful of encroaching on the client’s autonomy. 2.3.6 As a guideline, the social worker should work to respect the client’s autonomy, and wherever possible, should work to create further autonomy for the client to act. The principle of “do no harm” will also guide this work.
2.4 The social work role and responsibilities to clients when an EPOA is activated.
2.4.1 A social worker will seek evidence that clearly shows that an EPOA has been activated via EPOA documentation or an incapacity certificate prepared and signed by a relevant health practitioner (Glossary of Terms). A social worker will seek advice and consult widely in relation to work with EPOA (Section 99, (A), PPPR Act). There is specific direction to consult with the donor, as far as practicable, and follow any advice or advance directive given by the donor. There is no liability for anything done or omitted in following such directives, unless done or omitted in bad faith or without reasonable care.
2.4.1 The social worker will work to ensure that a client who has an activated EPOA in place can still have their preferences considered and be encouraged to do as much for themselves as possible. The social worker will:
1. talk with the person holding EPOA to ensure they understand the role and its limitations
2. advocate (if and when necessary) for the person lacking competence to be allowed to be as self-determining as possible.
2.4.2 Where there is concern that the appointed attorney is not acting in the clients best interest:
1. the social worker will offer a meeting to resolve this, and 2. if resolution cannot be made, parties will be advised to seek resolution through the
appropriate court process under the PPPR act (Section 103, PPPR Act)
2.5 The social work role and responsibilities to clients when a Social Worker is acting or appointed to act under the PPPR Act.
(This may occur in Voluntary work, Private Practice or exceptional circumstances where a social worker is the only option). Social workers practice in diverse environments and have cause to apply various practice mandates to their work. Where the practice of social work includes acting or being appointed to act under the PPPR Act there are issues of potential isolation and accountability that can (in both tangible and intangible ways) impact to undermine practice. To that end this practice note offers this guideline for those social workers who are acting or appointed to the act as EPOA, or under the Orders of the PPPR Act.
2.5.1 A Social Worker who is appointed as an EPOA is accountable in the same way, by law, as any
other person who may be appointed to that role. An EPOA is given with an unlimited time frame (and is “lifetime” in nature) where as personal and property orders are time limited. A social worker appointed as welfare guardian or to any other order by the Court is accountable in the same way, by law, as any other person who may be appointed to that role.
2.5.2 Social workers acting or appointed to act under the PPPR Act will practice in accordance with
policies and practices compatible with the Code of Ethics and Practice Standards and PPPR Act. E.g. the Code of Ethics section 2.1 “ Members accurately inform the wider community about the services that they offer...” This will allow policy and procedures that outline services available, client rights and any fees for service. Information related to service delivery will be available to referrers, potential clients and the wider community.
2.5.3 Social workers acting or appointed to act under the PPPR Act will practice to the Code of Ethics.
All practitioners will take appropriate steps to ensure regular supervision (from a supervisor experienced in working with the PPPR Act) and relevant supports are in place. Accountability can
also be attended to through stakeholder feedback, regular practice audit, competency assessment and peer review.
2.5.4 Payment: Welfare Guardian (sections 21) All expenses reasonable incurred by a welfare guardian in the exercise of the powers and duties under this act shall be charged against and payable out of the property of the person for whom the manager is acting. Property Manager (section 50 (1) PPPR Act). All expenses properly incurred by a manger (e.g. mileage) under this part of this act shall be charged against and payable out of the property of the person subject to the order. Section 50 (2) PPPR Act states that 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. This authority can be stated either on the order or in the judges minutes. This process is not only put before the judge but also involves the counsel appointed by the court for the client. An appointee who a judge orders can take fees must provide a financial report to the court within 3 months of appointment, every 12 months thereafter and within 30 days of ceasing as a manager.
2.5.5 Social worker acts or is appointed as the “last resort”. For a social worker to act or be appointed
to act under the PPPR Act, there will have been discussion and consideration with significant others (including family, friends, supervisor, manager and allied professionals) to establish that there is no other person able, willing and appropriate to take up this role. A decision to act or be appointed must also be in line with the agency’s policies and such discussion will be documented.
Members of ANZASW accept the responsibility to act and engage in work in a manner that promotes professional practice and adheres to and promotes the Code of Ethics.
The accountabilities for the social work profession include a competency assessment process, registration, supervision, and complaints processes. The competency assessment requires an applicant to provide evidence that they have knowledge and skills, for their field, and that they can deliver services in a manner that meets social work practice standards and ethics. This practice note may assist when a competency assessment or any professional review process is undertaken.
3.1 Social Workers competencies for working with the PPPR Act.
3.1.1 A social worker will be able to provide evidence of their having gained knowledge and practice skills relevant to working with the PPPR Act.
3.1.2 A social worker will undertake training specific to the PPPR Act. This can include but is not limited to, self-directed learning, workshops, and case studies.
3.1.3 A competency panel will have access to this practice note in order to ensure understanding and adherence if the PPPR Act is referenced in a competency application.
3.2 Agency Policy and Procedures related to working with the PPPR Act.
3.2.1 Social work agencies will develop and maintain appropriate policy and procedure that is applicable to their organisation, PPPR Act and in accordance with the Code of Ethics.
3.2.2 Social workers have a responsibility to maintain and strive to improve the structures, policies and
quality of service of their employing agency or organisation (4.2 and 4.4 Code of Ethics).
3.3 Te Tiriti o Waitangi and PPPR Act
3.3.1 A social worker understands and works to uphold “Responsibility for Te Tiriti o Waitangi- based Society” (the Code of Ethics).
3.3.2 The social worker has a responsibility to acknowledge and support the whanau as the
primary source of protection of the integrity of its family members (section 3.8 Code of Ethics).
3.3.3 In a situation where compulsion might be necessary, the social worker has the responsibility to consult with the client’s whanau or other Tangata Whenua authority as appropriate to the circumstances (section 3.9 Code of Ethics).
The practice examples that are offered here have been selected to provide a range of perspectives related to the use of the PPPR Act in Social Work practice. These are not complete case studies but might be described as sketches of the work carried out. There has been no attempt to edit them to get a “one size fits all” approach for as we know work in this field is complex as it involves individuals, families, often a number of professional human service agencies and of course the Court system with registrars, lawyers, hearings and adjudicators. In considering these practice examples the focus has clearly been on the social work role and the PPPR Act but there is other legislation that impacts on Social work and the PPPR ACT and this would also be considered when work is taking place.
The examples come from across the country and local variations are apparent. It's noted that some
agencies have arrangements with Needs Assessment services that others do not. Rural areas have inter- agency relationships that differ from those of larger centres and we know that how legislation is applied varies too because of practice perspectives (e.g. Maori working with whanau as the primary source of protection may not use PPPR Act at all).
The writers of these practice examples are all social workers. The examples have been reviewed by social workers. A number of challenging conversations have transpired. Where we can all agree is that the practice examples can be useful when they assist a social worker to understand the context of their work, and so can go some way to supporting social workers in finding and developing their practice in relation to PPPR Act.
4.1 Four examples from practice: where a social worker is an applicant for an order under the PPPR Act.
1. Practice Example: Mr D
Brief history. Mr D is an 18 year old young adult male with a severe intellectual impairment, congenital medical issues and a number of difficult behaviours. Mr D lived at home and was totally reliant upon his family and carers for all of his personal care needs. He had a history of multiple hospital admissions and was identified as being self-injurious. Over the years Mr D became known to local care and protection teams and there were concerns about possible issues of poor care and neglect but nothing was ever substantiated. At a recent hospital admission Mr D was reported to be in an incredibly dirty physical condition with a number of infections. His clothes were very soiled and there was concern that his subsequent surgery was as a direct result of his inadequate hygiene. Family members were contacted for discussion related to Mr D's poor personal hygiene and related health situation but they did not see or understand that there were any care issues. A further family meeting was arranged but again there was no resolution found.
Brief of treatment plan.
It was determined by the multi-disciplinary team that Mr D was a ‘vulnerable person’. The social worker had discussions with Mr D and attempted to ascertain his wishes. Mr D lacked the capacity to act on his own behalf and appeared to be at further risk of developing major health complications if his current situation continued. A decision was made to investigate and if appropriate apply for a Personal Order under Section 10 of the PPPR Act 1988. Management were also consulted and supported the action, as it was felt that there was a duty of care towards the patient.
Social Work role and tasks.
A challenging task for the social worker (and other staff) was to engage the family in understanding the issues related to Mr D's health and welfare, all efforts failed and the family became unhappy and angry. The social worker was also asked to take the task of preparing an application for a Personal Order under Section 10 of the PPPR Act 1988. The order was sought to allow the patient to reside at a residential facility within the community. The social worker collated all of the relevant information setting out the medical
history of the patient, the names and relationships of the people who would be affected by the application and the reasons why the order was required.
Followed by...The hospital solicitor formalised the information and filed the application with the Family Court. The application was supported by several letters from treating medical practitioners; the Consultant outlined their concerns providing crucial observational evidence and the resulting consequences for the patient. The Family Court appointed a lawyer to act on behalf of the patient. The lawyer interviewed all the relevant parties and compiled a report with their recommendation that the patient be placed in the nominated residential facility. It was also proposed that the patient’s family should still be given the appropriate support to maintain their relationships. The Personal Order was granted by the Family Court and a transitional phase was initiated by hospital staff to allow the new residential staff an opportunity to engage with the patient and for the patient to adjust to new carers and routines.
Unique to this particular piece of work
Applying for the Personal Order was not an easy process and it created a very tense relationship between the family and hospital staff. Despite the best efforts to engage the family, they remained very angry with the social worker and nurse manager. The family ceased visiting Mr D in hospital.
It was noted that the patient made considerable gains during his admission (several weeks) and was responding favorably to a consistent routine. It was observed that Mr D was able to form some good working relationships with the staff caring for him and was also able to make his feelings known and therefore his needs could be met appropriately.
2. Practice Example Mr F
Brief History Mr F is a man of about 85 years who was admitted to Assessment, Treatment and Rehabilitation Ward, Older Persons Health Specialist Service. Over the past year he had multiple hospital admissions, multiple falls, a history of strokes, mixed dementia, swallowing risk and long-term high alcohol intake.
Mr F lived alone and was viewed as having poor hygiene and inadequate food intake. He was known to be incontinent. He had declined support. There was good evidence that Mr F was not safe living at home alone. Family were willing to support him but were rejected and some family members had become estranged.
Mr F had been assessed as wholly lacking in capacity regarding decisions about personal care and welfare and wholly incapable of managing property & finance.
Brief of the actions. A meeting was held with Mr F, his family and Inter-disciplinary Team members (medical, Occupational Therapist, Physio Therapist, Social Worker). Mr F stated clearly that he wanted to return home. It was explained to Mr F he was not safe living at home alone and that medical duty of care required an application to the Family Court for decision/guidance, and that a lawyer would be appointed to represent him. Mr F's family supported the application; a family member was willing to act as property manager but was not willing to make the applications to the Court.
Role and tasks of the social worker. Applications to Family Court. The Social Worker applied to Court for an Interim Order for Placement (as if this order is made it can be actioned immediately) while the more time consuming application for the Personal Order for placement was processed. An Order for Property Management was also made. The Social Worker identified these as the least restrictive orders. Applications including a social worker’s report, medical report, affidavits (sworn), consents, and all other information are required by Family Court for each order. Court appointed legal counsel for Mr F. Counsel filed a report also. Court requested that the applicant (social worker) provide an additional affidavit recommending the Court should consider an Order for Welfare Guardian, the affidavit was filed and a family member consented to being Welfare Guardian.
Mr F attended the conference with family & legal counsel. Mr F’s legal counsel recommended that orders should be made for placement, property management & welfare guardian. The social worker attended all Court proceedings with the District Health Board lawyer.
Judge’s Orders:
In this case the Judge made immediate Orders for placement (facility found prior to application), property management & welfare guardian (family member appointed to both). Mr F was placed in a residential facility.
3 Practice Example: Mr B
Brief history. Mr B lived at home with his wife and was diagnosed with a cognitive impairment, likely cause being high alcohol consumption. He was advised to make an EPOA but did not appear to see this as being needed. A year later after significant cognitive and functional decline (indicating he now had dementia) he was admitted to a detoxification ward and was then transferred to the psychogeriatric inpatient unit.
Brief of treatment plan.
It was determined, by a Multi-disciplinary Team assessment and discussions with the family, that Mr B required 24 hour supervision plus assistance with most activities of daily living. It was agreed (following the Needs Assessment process) that he would need placement in a secure dementia care residential facility to meet his needs.
Social Work role and tasks. The Social Work role included providing information to the Multi-disciplinary team and family about the PPPR Act. This information highlighted how to manage the care and welfare of Mr B using least restrictive measures.
It was determined (in consultation with all concerned) that a personal order for placement was less restrictive than a welfare guardian. While it is acknowledged that the personal order for placement is the least restrictive action, an order for a welfare guardian might also have been applied for as it could facilitate ongoing care decisions and ensure external oversight. A full discussion related to the best use of the personal rights orders (in this case the order for placement or welfare guardian) always takes place and decisions made in discussion with a supervisor and/or team and legal advisers. Further to this an order for a property administrator (due to his low income) was appropriate.
NB. Ward staff understand The Health and Disability Commission Code of Rights, Rule 7, on treatment without consent which allows Mr B to remain on the ward whilst the applications were made. The papers were filed in court and at that point it was agreed that Mr B could be placed in residential care. (This is an agreement the agency has with the local NASC agency, I.e. that once the papers are filed, provided there is no disagreement between the interested parties, the person can be placed in residential care).
The Social Worker completed the PPPR Act application process, including ensuring the appropriate paperwork completed, and getting consent forms from Mr B’s family. In this case the family expressed their support for the social worker completing this work but were not willing or able to complete this application to the Court. The Social Worker filed the papers in Court and at the point the Court determined the orders to be made, the Social Worker recorded the outcome and informed all parties. The Social Worker ensures all work done (including copies of orders) is recorded and kept appropriately.
And the unexpected... the Social Worker found that placing Mr B in care before the court process was completed caused some issues. Since Mrs B could not access Mr B's bank account there was no way to meet his personal expenses for the first couple of months (i.e. haircuts and podiatry) nor could the home
receive any money as the application for residential care subsidy could not be done until the property administrator was appointed.
The Social Worker worked with the residential care facility to ensure there was an understanding of this prior to placement being agreed but unfortunately some staff did keep asking Mrs B for money which caused her some stress. The Social Worker reviewed this situation with the manager, staff were informed of the legal situation and Mrs B was no longer asked by staff for money.
Unique to this piece of work.
The placing of Mr B in a secure unit without having his legal status clear raised some concerns for the social worker. On reflection the social worker considers that if the The Health and Disability Commission Code of Rights, Rule 7, is used then not only does full discussion with court appointed lawyer have to happen, but all parties need to agree on who will be responsible for the longer term arrangements (e.g. welfare guardianship). At all times it is preferable to have the legal status of a person clear before proceeding with any placement.
4. Practice Example: Miss J
Miss J was admitted to hospital (Brain Injury service) following a subarachnoid haemorrhage. She was living alone prior to the hospital admission (had an ex-partner) and was a patient of a community Mental Health team. There was no EPOA in place. Physical harm (at the hands of her ex-partner) was identified as a significant risk to Miss J's if she were to returned to her previous home. The IDT team assessed Miss J as requiring 24 hour supervision. She was engaged in the discharge planning process but with no success as the options she provided were either not safe, (living with her twin sister who also had chronic mental health issues and was at risk from her ex-partner) or unrealistic, (organising for her landlord to find somewhere else for her live but he was a ‘slum’ landlord). Investigations found no family members willing or able to take on a role of a carer or Welfare Guardian for Miss J. Miss J was formally assessed by the team Psychiatrist to establish an understanding of the level of capability Miss J actually had. The Psychiatrist assessed Miss J as wholly lacking in competency.
Social Work role and tasks.
Miss J had been in the hospital as an impatient for approaching six months, was assessed as needing 24 hour care and was further assessed as wholly lacking capability to care for herself. Duty of care required Miss J to remain in the hospital until a safe living situation was available. It was agreed by the IDT that in order to facilitate discharge the most appropriate action (and lest intrusive intervention) was to apply for an Interim Placement Order (section 10, PPPR Act) for Miss J. The Social worker role (as there were no family members able or willing to attend to this ) was to completed the application to the Family Court, and all relevant documentation. Miss J was discharged to a community residential facility. Without the Order being made Miss J would not have been able to discharge from the hospital ward. The Order for Placement and subsequent reviews were attended to by the community residential facility.
Unique to this particular piece of work:
Was the complex nature of the environment Miss J came from. The significant risk posed by her ex-partner and a lack of family or significant other to support Miss J meant there was actually no familiar person able to act for Miss J. Miss J spent a very long period of time in the hospital because a safe living environment was not readily available to her.
A social work follow-up found that the residential service had a psychiatric assessment done for Miss J and as a result of this she was prescribed a medication. The residential service report that Miss J settled into the residence and was compliant. The SWer also found the interim order for placement had expired and no further order for placement applied for.
4.2 Example from practice: where the social worker is working with Tangata Whenua
Practice Example. Miss A
Brief history. Miss A is an elderly Maori wahine who has an intellectual impairment. She has been “passed around” whanau since her parents passed away some years ago. Miss A's situation was brought to DHB Social Work attention by the District Nurses who visited her at home to tend to her diabetes related ulcers. The nurses raised concerns and reported witnessing psychological and emotional abuse of Miss A by her sister and her sisters children. Miss A was reported as appearing frightened at times and fearful of saying too much.
Brief of action plan. Following the referral for social work and assigning of the social worker a plan to do an initial exploration of the situation with Miss A was decided upon. The social worker telephoned Miss A to set up a time to visit. During the telephone conversation the social worker felt that Miss A sounded unwell and noted that she spoke of being stressed as her sister was attending a tangi. The social worker decided to make an immediate visit to the home and found Miss A in a very distressed physical and emotional state. Miss A was taken to the Accident and Emergency department of the local hospital; she was diagnosed there as being in renal failure and was flown to the main hospital.
Social Work role and tasks. The social work role and tasks were determined by the fact that the living situation for Miss A was unsafe. Miss A needed a satisfactory living environment. Miss A's history and cognitive impairment meant getting consent to proceed with EPOA was not appropriate. Miss A's superannuation was in an account that her sister could access. Miss A did not want the social worker to speak with her sister as she was fearful of the outcome of this. Involving the police was not appropriate as Miss A was opposed to any form of confrontation.
For this work the social work understood that the tasks all related to finding a “safe” whanau member who would be able to discuss Miss A's situation and inform on whanau dynamics and living options. With Miss A's agreement the social worker was able to contact Miss A's nephew who could fill this role.
From discussion with the nephew the social worker was able to contact Miss A's older brother. The social worker contacted the brother and outlined the concerns related to Miss A. He spoke of “having had suspicions” and agreed he would talk to his sister (caregiver) as he was aware she had health issues of her own. The brother contacted the social worker after he had spoken with his sister (caregiver), there was agreement that Miss A would move to her brother's care. Miss A was very happy.
Unique to this particular piece of work.
The work the social worker did to ensure Miss A had a safe and appropriate living situation was all whānau focused. While there were very serious issues of neglect and abuse of Miss A, the social worker worked to; have Miss A's wishes followed, to minimise legal and other forms of compulsion, to acknowledge and support the whānau as the primary source of protection. The social worker was also active in seeking and ensuring that whānau were able to make their own decisions and action those in the way that worked best for them.
4.3 Example from practice: where the social worker is working with the family
Practice Example: Mrs E
Brief history.
Mrs E lived at home alone. She has two daughters, one living locally and the second living about 5 hours away. There was no EPOA in place. Mrs E was known to the Senior Medical Officer (SMO) who works with the Older Person’s and Rehabilitation Community Team Service (OPRS) of the local hospital. The SMO referred Mrs E to the social worker and requested a social work assessment to determine how Mrs E was managing as one of Mrs E’s daughters reported to the SMO that she had some concerns about Mrs E not managing tasks at home, e.g. expired items including milk in fridge, neglecting her personal cares and deteriorating care and attention to the inside of the house.
Social Work role and tasks. The first task of the social worker was to engage Mrs E. Mrs E was contacted by the social worker who introduced herself, the social work service and talked about the reason for her call. The social worker explained that Mrs E's doctor wanted a social worker to see how she was getting on at home, and to see whether she needed any assistance. The social work approach used was low key, supportive and non- confrontational. Mrs E declined the social work intervention. She reported she was coping fine with all activities of daily living.
The social worker was made aware through the referral information that medical investigations were being undertaken with regard to Mrs E’s insight and cognition. The SMO suggested that Mrs E may lack the insight required to know if she was struggling. Because of the concerns raised in the referral, the social worker asked Mrs E if she could talk with Mrs E’s daughter. Mrs E consented to this.
The second task of the social worker was to engage the family. The social worker contacted Mrs E’s daughter. The daughter explained the deterioration in her mother’s ability to manage and said that, initially, she thought the changes were simply part of the ageing process. She now wonders if there were other factors contributing to the decline based on the discussions with the doctor two weeks previously. Mrs E’s daughter was keen to meet with the social worker and her mother. The daughter sought her mother’s permission for a home visit. A home visit was arranged and during this a full social work assessment occurred. The social worker liaised with the SMO following the home visit and wrote the social work assessment.
The social work role throughout this work was to assess the level of assistance both Mrs E and her family required at each step, and to provide information, support, linkage and liaison with appropriate agencies. The social worker’s knowledge of how competency was assessed, how both EPOA and PPPR Act processes worked, and the importance of working within a Code of Ethics would enable both Mrs E and the family to be appropriately supported at each level of need as it arose.
The Assessment.
The information gathered at the home visit and from the SMO showed that Mrs E was not attending to her personal cares, that she had little insight into her personal appearance, and that she was not taking her medications as prescribed. There were significant hazards apparent, including expired food, medications loose on the table and floor, and burnt pots on the stove. Mrs E appeared very defensive when such observations were made and she rejected any inference that she was not managing particular tasks. Discussion with the OPRS team raised questions of whether Mrs E might be struggling due to an undiagnosed cognitive decline. The SMO arranged for investigations including head MRI, and blood tests. Following a discussion with Mrs E's daughter, a referral was made to the local Needs Assessment Service Co- ordination agency (NASC) for provision of a package of care for Mrs E until results of the medical assessments were known.
Brief Treatment Plan
Mrs E did not want any interventions and her daughter agreed that her mother remain at home with supports/services in place and to see how she coped. Mrs E’s daughter also understood that her mother may refuse offers of personal care and would visit her mother more frequently and encourage her to accept whatever assistance was available. Practical supports were introduced with blister packing of future
prescription medicines and twice daily personal care visits arranged to assist with morning, shower and medication routines. Mrs E did accept external help albeit reluctantly. Information was provided about Alzheimer’s Wellington.
Whilst investigations were under way, the OPRS team’s advised that it was not appropriate for Mrs E's daughter to approach a lawyer to ask that Mrs E prepare EPOA instructions as doubt existed concerning Mrs E ability to make a reasoned decision of this magnitude, i.e. her competence.
Unique to this piece of work.
Several weeks following supports being established Mrs E refused any carer to visit, and she would not open the door to anyone except her daughter. Medical and Occupational Therapy tests and background information confirmed a diagnosis of vascular dementia, with significant short term memory loss. Given the medial information and Mrs E’s refusal to permit carers into the home, the SMO completed an expert medical report required for the purposes of a PPPR Act application.
PPPR Act applications. The social worker and Mrs E's daughter worked together to complete the PPPR paperwork for welfare
guardian and property manager. The social worker rang Mrs E's second daughter who voiced her thoughts and stated she was happy for her sister to be welfare guardian. Mrs E's second daughter was happy to complete the family member consent form agreeing to her sister being the applicant and Mrs E’s welfare guardian if approved by the Courts. This second daughter voiced reluctance related to her mother going into care and she stated her mother should stay at home as long as possible. The social worker forwarded to both daughters the booklet “The Protection of Personal and Property Rights Act 1988”, NZ Family Courts, Ministry of Justice. Consent forms were also explained, as was the process that states all interested parties must get a form to complete and submit back to court. Mrs E's daughter was nominated by the family to be in above roles. Mrs E's daughter was supported by the social worker to file the PPPR Act applications in the local Court.
Mrs E’s daughter was appointed welfare guardian, and she continued to support Mrs E in her own home with NASC assistance for as long as possible. After six months a OPRS review and NASC assessment showed a greater deterioration in Mrs E's ability to manage previously learned behaviours such as locking the door. The NASC re- assessment recommended that Mrs E now required 24/7 residential care. Eventually Mrs E was moved into long term care (9 months after the initial contact) and both sisters agreed this was the safest outcome for their mother.
Age Concern New Zealand Website: www.ageconcern.org.nz
Alzheimers NZ Web site: www.alzheimers.org.nz
A Guide to Making Applications Under the PPPR Act Web site www.rescarenz.org.nz
New Zealand Law Society Web site www.lawsociety.org.nz/
Protection of Personal and Property Rights Act 1988 Website www.legislation.govt.nz/act/public/1988/0004/latest/whole.html
Local Community Law Office Websitewww.communitylaw.org.nz
Local Family Court Registrar Website www.justice.govt.nz
6 Capacity Note
Capacity is used in this document for consistency. It is understood that capacity, competency, capability can be used interchangeably and are deemed to mean,
The ability to communicate choices, The ability to understand relevant information and decisions, The ability to appreciate a situation and its consequences, The ability to manipulate information rationally.
A Social Worker does not have any jurisdiction over a client’s life and the decisions they make unless the social worker has some substantiation such as a medical certificate testifying to the client’s lack of capacity. This lack of capacity could be a partial or a complete a lack of capacity. For an application under the PPPR Act, a medical certificate following the prescribed format is required; see the PPPR Act forms and applications. This medical certificate can be completed by the client’s G.P. or a specialist physician whose scope of practice includes assessing capacity.
Partial lack of capacity means personal and property orders can be applied for, but not a welfare guardian,
Total lack of capacity means a welfare guardian may be applied for, as well as personal and property orders.
7 Appendices Appendix 1. Relevant legislation/recourse for vulnerable clients.
• The Protection of Personal and Property Rights Act (1988)
• Section 126 of the Health Act (1956)
• Local body legislation- cleansing orders, order to abate.
• Mental Health Legislation- Compulsory Assessment and Treatment.
• Health and Disability Commission Code of Rights
(Treatment under right 7(4) of the Code of Rights).
Crimes Amendment Act 2011
Appendix 2 Summary of ANZASW Ethics and Principles
Promote independence for clients.
Advocate equality, solidarity, unity, and connectedness among human beings. Does not discriminate on the grounds of gender, age, disability, colour, race, religion, language,
political beliefs, or sexual orientation.
Uphold value of democracy and human rights.
Protects clients integrity.
Seek highest possible client's participation in their problem solving.
Value client's self-determination and minimise the use of compulsion.
Does not support individuals, groups, or political forces using terrorism or brutality. Undertake research on a scientific basis.
Recognise and accept Maori as Tangata Whenua of Aotearoa and that the social workers role is to achieve social justice for Maori at both a structural and individual level within the spirit of Te Tiriti O Waitangi.
Take personal responsibility for social work practice.
Appendix 3 ANZASW Practice Standards (2014)
Standard 1 The social worker adheres to the Code of Ethics and the Objects of Aotearoa New Zealand Association of Social Workers. Standard 2 The social worker demonstrates a commitment to practicing social work with an understanding of Te Tiriti o Waitangi, Articles 1, 2, 3 and 4 and demonstrates competence to work with Māori. Standard 3
The social worker demonstrates competence to work with different ethnic and cultural groups in Aotearoa New Zealand. Standard 4 The social worker establishes an appropriate and purposeful working relationship with people and communities, taking into account individual differences and the social context of situations and environments. Standard 5 The social worker collaborates with people to gain control over their environment and circumstances. Standard 6 Social workers have and develop the applied knowledge, skills and theories required for effective social work practice Standard 7 Social workers demonstrate the skills and knowledge required to communicate and work effectively with people, communities and organisations.
Standard 8 The Social Worker demonstrates commitment and contribution to social change and social development. Standard 9 The Social Worker has an awareness of and demonstrates commitment to social justice, human rights and human dignity. Standard 10 Membership of the ANZASW is used to promote and support the SW profession with integrity
Appendix 4 Procedural Check list EPOA
Information that a EPOA is activated. The social worker will; 1. Sight EPOA documentation. Case note, date sighted.
(Copy for file where possible). 2. Sight Certificate from health professional (person deemed to lack capacity. NB, an assessment of a
person’s capacity can only be made by health practitioners within whose scope of practice such determinations are made).
3. Case note, date sighted. (Copy for file where possible)
Appendix 5
Kaupapa Maori practice (Code of Ethics ANZASW 3.8) In relation to social work with Tangata Whenua clients, social workers have the responsibility to acknowledge and support the whanau as the primary source of protection of the integrity of their family members... It is understood that when working with Tangata Whenua clients there may be no formal use of the PPPR Act. It may not be necessary to apply for any formal protection – for example– if a person is accepting of necessary supports, is not in a locked facility, has someone as an appointee for WINZ and a joint bank account, then even if they are not competent and without EPOA, a personal order is unlikely to be required.
Appendix 6 The Health and Disability Commissioner Code of Rights, on treatment without consent:
Where there is no advance directive or person legally entitled to consent on behalf of an incompetent patient, treatment may be given following the process set out in 7(4) of the Code of Rights. The person providing the treatment must believe the treatment is in the patient's best interests and consistent with the patient's wishes.
Right 7(4) states:
Where a consumer is not competent to make an informed choice and give informed consent, and no person entitled to consent on behalf of the consumer is available, the provider may provide services where -
(a) It is in the best interests of the consumer; and
(b) Reasonable steps have been taken to ascertain the views of the consumer; and
(c) Either, -
(i) If the consumer's views have been ascertained, and having regard to those views, the provider believes, on reasonable grounds, that the provision of services is consistent with the informed choice the consumer would make if he or she were competent: or
(ii) If the consumer's views have not been ascertained, the provider takes into account the views of other suitable persons who are interested in the welfare of the consumer and available to advise the provider.
NB; Point (ii) above, "other suitable persons" would include but not be limited to the patient's family and health social workers who have sufficient knowledge of the patient through a working relationship.
Client In relation to working with the PPPR Act a social worker will understand “the client” as the person who is “the subject” of work to promote and protect personal and property rights (i.e. the 'subject person” of a personal or property order, the “donor” of EPOA).
Donor In relation to working with the PPPR Act a social worker will understand “ the client” as the person who is “the subject” of work to promote and protect personal and property rights, that is the “donor” of an EPOA.
Health Practitioner The certificate of mental incapacity must be completed by a relevant health practitioner. A relevant health practitioner is a person—
• who is, or is deemed to be, registered with a registration authority appointed by or under the Health Practitioners Competency Assurance Act 2003 as a practitioner of a particular health profession; and
• whose scope of practice enables him or her to assess a person's mental capacity; and • who is competent to undertake an assessment of that kind.
A Registered Social Worker as a Health Practitioner: A registered social workers is a health practitioner through the Health and Disability Commissioner Act 1994 No 88
Section 2(1): Authority has the same meaning as in Section 5 of the Health
Practitioners Competence Assurance Act 2003; and includes the Social Workers
Registration Board established by Section 97 of the Social Workers Registration
Act 2003
Sec 2(1)(b)(iii): Health Practitioner includes a registered social worker within the
meaning of the Social Workers Registration Act 2003.
Subject Person In relation to working with the PPPR Act a social worker will understand “ the client” as the person who is “the subject” of work to promote and protect personal and property rights, that is the 'subject person” of a personal or property order. Vulnerable Person A person unable, by reason of age, sickness, mental impairment, or any other cause, to withdraw himself or herself from the care or charge of another person.
9 Sample Forms 9.1 Health practitioner's certificate of mental incapacity for enduring power of attorney
in relation to property
Sections 97(5) and 99D, Protection of Personal and Property Rights Act 1988 I, [full name, address, registration number of health practitioner], a health practitioner, certify that—
1. I am a health practitioner registered, or deemed to be registered, with [specify responsible registration authority appointed by or under the Health Practitioners Competence Assurance Act 2003] as a practitioner of [state particular health profession].
2. For this paragraph— a. select Statement A if the donor has not specified in the enduring power of attorney that his or her mental capacity be assessed by a
health practitioner with a specified scope of practice; or b. select Statement B if the donor has specified in the enduring power of attorney that his or her mental capacity be assessed by a health
practitioner with a specified scope of practice. Statement A My scope of practice includes the assessment of a person's mental capacity. Statement B My scope of practice—
includes the assessment of a person's mental capacity; and is the same as that specified in the enduring power of attorney.
3. On [date] I examined/assessed* [full name of donor], the donor of the enduring power of attorney in relation to property dated [date enduring power of attorney was signed], to ascertain his/her* mental capacity.
*Select one.
a) In my opinion, the donor is mentally incapable because he/she* is not wholly competent to manage his/her* own affairs in relation to his/her* property.
*Select one.
b) The reasons for my opinion are: [specify].
Date: Signature of health practitioner:
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9.2 Guidelines for health practitioners completing certificate of mental incapacity (enduring power of attorney in relation to property)
Please note— this form must be used if the certificate of mental incapacity is issued in New Zealand: if the certificate of mental incapacity is issued outside New Zealand, the certificate must be in a form acceptable to the competent
authority of the country concerned: these guidelines are intended to help health practitioners complete the certificate of mental incapacity for an enduring power of
attorney in relation to property.
1. Purpose of assessment and certificate a) The purpose of the health practitioner certificate is to record the opinion of an appropriate health practitioner about the mental capacity of
a person (a donor) who has set up an enduring power of attorney (EPA) under the Protection of Personal and Property Rights Act 1988 (the Act).
b) An attorney appointed under an EPA in relation to property cannot act unless— • a relevant health practitioner has certified that the donor is mentally incapable; or
• a Family Court has determined that the donor is mentally incapable; or • the EPA was set up in a form that authorised the attorney to act immediately after it was
signed.
2. Who can complete the assessment and certificate? a) The certificate of mental incapacity must be completed by a relevant health practitioner. A relevant health practitioner is a person—
• who is, or is deemed to be, registered with a registration authority appointed by or under the Health Practitioners Competence Assurance Act 2003 as a practitioner of a particular health profession; and • whose scope of practice enables him or her to assess a person's mental capacity; and • who is competent to undertake an assessment of that kind.
b) In the case of a certificate of mental incapacity issued outside New Zealand, a relevant health practitioner is a person registered
as a medical practitioner by the competent authority of the country concerned and whose scope of practice includes the assessment of a person's mental capacity.
c) A donor may specify in an enduring power of attorney that an assessment of his or her mental capacity be undertaken by a health practitioner with a specified scope of practice (for example, a medical practitioner registered with a general scope of practice, or a nurse whose registered scope of practice is nurse practitioner). Provided that health practitioners who have that scope of practice are able to assess a person's mental capacity, then only a health practitioner with the scope of practice specified by the donor and who is competent to do so may assess the donor's mental capacity and complete the certificate.
3. Definition of mentally incapable 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.
a) Presumption of competence In assessing a donor's mental capacity, a health practitioner must have regard to the presumption of competence in section 93B of the Act. This states that, for the purposes of Part 9 of the Act, every person is presumed, until the contrary is shown, to be competent to manage his or her own affairs in relation to his or her property. b) Imprudent behaviour A person must not be presumed to lack competence just because the person manages or intends to manage his or her own affairs in relation to his or her property in a way that a person exercising ordinary prudence would not do in the same circumstances. c) People subject to Mental Health (Compulsory Assessment and Treatment) Act 1992 A person must not be presumed to lack competence just because that person is subject to compulsory treatment or has special patient status under the Mental Health (Compulsory Assessment and Treatment) Act 1992.
4. Reasons for opinion
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Although there is no prescribed method of assessing incapacity for the purpose of this certificate, it is important that the practitioner records the reasons for his or her opinion in case it is challenged.
1. Further certificates Where a donor has given written notice to an attorney that the attorney's power is suspended, the attorney cannot act under the enduring power of attorney unless a further certificate is obtained from a relevant health practitioner, or the Court determines that the donor is mentally incapable.
2. Request for certificate, payment, etc. An assessment for the purpose of issuing a certificate can be requested—
a) by the attorney (or the successor attorney) for the donor's property; or b) by any other person who is seeking the assessment and certificate for the purpose of authorising the attorney to act and who intends to pass the certificate on to the attorney.
The health practitioner should provide the completed certificate to the person who requests the assessment and certificate.
It is the responsibility of the person who requests the assessment and certificate to arrange payment for the assessment and certificate. This payment is recoverable by the person who requests the assessment and certificate as a debt from the donor's property.
3. More information about enduring powers of attorney You can find more information about enduring powers of attorney on the New Zealand Law Society website (www.lawsociety.org.nz) and on the Ministry of Justice website (www.justice.govt.nz). The law on enduring powers of attorney is set out in Part 9 of the Protection of Personal and Property Rights Act 1988. A copy of this Act can be found on the New Zealand legislation website at www.legislation.govt.nz.
9.3 Health Practitioner’s certificate of mental incapacity for enduring power of attorney in relation to personal care and welfare
Sections 98(3) and 99D, Protection of Personal and Property Rights Act 1988 I, [full name, address, registration number of health practitioner], a health practitioner, certify that—
1. I am a health practitioner registered, or deemed to be registered, with [specify responsible registration authority appointed by or under the Health Practitioners Competence Assurance Act 2003] as a practitioner of [state particular health profession].
2. For this paragraph— a) select Statement A if the donor has not specified in the enduring power of attorney that his or her mental capacity be
assessed by a health practitioner with a specified scope of practice; or b) Select Statement B if the donor has specified in the enduring power of attorney that his or her mental capacity be
assessed by a health practitioner with a specified scope of practice. Statement A My scope of practice includes the assessment of a person's mental capacity. Statement B My scope of practice—
includes the assessment of a person's mental capacity; and is the same as that specified in the enduring power of attorney.
3. On [date] I examined/assessed* [full name of donor], the donor of the enduring power of attorney in relation to personal care and
welfare dated [date enduring power of attorney was signed], to ascertain his/her* mental capacity.
*Select one.
4 . For this paragraph select the statement(s) that apply.
Statement A In my opinion, the donor is mentally incapable as he/she* lacks the capacity to make a decision about [specify matter relating to donor's personal care and welfare in respect of which a decision is being made, or is proposed to be made].
*Select one.
Statement B In my opinion, the donor is mentally incapable as he/she* lacks the capacity to understand the nature of decisions about [specify matter relating to donor's personal care and welfare in respect of which a decision is being made, or is proposed to be made].
*Select one.
Statement C In my opinion, the donor is mentally incapable as he/she* lacks the capacity to foresee the consequences of decisions about [specify matter relating to donor's personal care and welfare in respect of which a decision is being made, or is proposed to be made], or to foresee the consequences of any failure to make such decisions.
*Select one.
Statement D In my opinion, the donor is mentally incapable as he/she* lacks the capacity to communicate decisions about [specify matter relating to donor's personal care and welfare in respect of which a decision is being made, or is proposed to be made].
*Select one.
5 . For this paragraph select the statement that applies.
Statement A The donor's mental incapacity is due to a health condition that is likely to continue for a period of [number] of months/years*.
Statement B The donor's mental incapacity is due to a health condition that is likely to continue indefinitely.
July 2015 Page | 26
Statement C The donor's mental incapacity is due to a health condition the duration of which I am unable to determine.
6. The reasons for my opinion are: [specify].
Date: Signature of health practitioner:
July 2015 Page | 27
9.4 Guidelines for health practitioners completing certificate of mental incapacity (enduring power of attorney in relation to personal care and welfare)
Please note— this form must be used if the certificate of mental incapacity is issued in New Zealand: if the certificate of mental incapacity is issued outside New Zealand, the certificate must be in a form acceptable to the competent
authority of the country concerned: these guidelines are intended to help health practitioners complete the certificate of mental incapacity for an enduring power of
attorney in relation to personal care and welfare.
1. Purpose of assessment and certificate a) The purpose of the health practitioner certificate is to record the opinion of an appropriate health practitioner about the mental capacity
of a person (a donor) who has set up an enduring power of attorney (EPA) under the Protection of Personal and Property Rights Act 1988 (the Act).
b) An attorney appointed under an EPA in relation to personal care and welfare cannot act on a significant matter relating to the donor's
personal care and welfare (see paragraph 4 below) unless a relevant health practitioner has certified that the donor is mentally incapable, or a Family Court determines that the donor is mentally incapable.
2. Who can complete the assessment and certificate? a) The certificate of mental incapacity must be completed by a relevant health practitioner. A relevant health practitioner is a person—
• who is, or is deemed to be, registered with a registration authority appointed by or under the Health Practitioners Competence Assurance Act 2003 as a practitioner of a particular health profession; and • whose scope of practice enables him or her to assess a person's mental capacity; and • who is competent to undertake an assessment of that kind.
b) In the case of a certificate of mental incapacity issued outside New Zealand, a relevant health practitioner is a person registered as a medical practitioner by the competent authority of the country concerned and whose scope of practice includes the assessment of a person's mental capacity.
c) A donor may specify in an enduring power of attorney that an assessment of his or her mental capacity be undertaken by a health practitioner with a specified scope of practice (for example, a medical practitioner registered with a general scope of practice, or a nurse whose registered scope of practice is nurse practitioner). Provided that health practitioners who have that scope of practice are able to assess a person's mental capacity, then only a health practitioner with the scope of practice specified by the donor and who is competent to do so may assess the donor's mental capacity and complete the certificate.
3. Definition of mentally incapable 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.
A donor's mental capacity is determined at the time a decision about a significant personal care and welfare matter is being, or is proposed to be, made, and is determined in relation to that matter.
Presumption of competence
In assessing a donor's mental capacity, a health practitioner must have regard to the presumption of competence in section 93B of the Act. This states that, for the purposes of Part 9 of the Act, every person is presumed, until the contrary, is shown to have the capacity—
a) to understand the nature of decisions about matters relating to his or her personal care and welfare; and b) 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 c) to communicate decisions about such matters.
July 2015 Page | 28
Imprudent behaviour
A person must not be presumed to lack mental capacity just because that person makes or intends to make a decision about his or her personal care and welfare that a person exercising ordinary prudence would not make in the same circumstances.
People subject to Mental Health (Compulsory Assessment and Treatment) Act 1992
A person must not be presumed to lack mental capacity just because that person is subject to compulsory treatment or has special patient status under the Mental Health (Compulsory Assessment and Treatment) Act 1992.
1. Definition of significant matter The term a significant matter related to the donor's personal care and welfare means a matter that has, or is likely to have, a significant effect on the health, well-being, or enjoyment of life of the donor (for example, a permanent change in the donor's residence, entering residential care, or undergoing a major medical procedure). Note that the health practitioner completing the certificate is not certifying that the matter is a significant matter. The attorney is able to act in relation to personal care and welfare matters that are not significant ones if the attorney believes on reasonable grounds that the donor is mentally incapable. The attorney requires the certificate in order to act in relation to a significant matter. The health practitioner can therefore rely on the attorney's judgement that the matter is a significant one. The assessment and certificate relates to a particular significant matter. If and when another significant matter arises, a further assessment and certificate may be required (see paragraph 6 below).
2. Reasons for opinion Although there is no prescribed method of assessing incapacity for the purpose of this certificate, it is important that the practitioner records the reasons for his or her opinion in case it is challenged.
3. Further certificates Further certificates will be required whenever a decision needs to be made about a significant matter relating to the donor's personal care and welfare. However, if the health practitioner certifies that the donor is mentally incapable because of a health condition that is likely to continue for a period stated in the certificate, no further certificates will be required during the stated period unless the donor suspends the attorney's power to act.
If the health practitioner certifies that the donor is mentally incapable because of a health condition that is likely to continue indefinitely, no further certificates as to the donor's incapacity are required unless the donor suspends the attorney's power to act. Where a donor has given written notice to an attorney that the attorney's power is suspended, the attorney cannot act under the enduring power of attorney unless a further certificate is obtained from a relevant health practitioner, or the Court determines that the donor is mentally incapable.
1. Request for certificate, payment, etc. An assessment for the purpose of issuing a certificate can be requested by—
• the attorney (or the successor attorney) for the donor's personal care and welfare; or • by any other person who is seeking the assessment and certificate for the purpose of authorising the attorney to act and
who intends to pass the certificate on to the attorney. The health practitioner should provide the completed certificate to the person who requests the assessment and certificate. It is the responsibility of the person who requests the assessment and certificate to arrange payment for the assessment and certificate. This payment is recoverable by the person who requests the assessment and certificate as a debt from the donor's property.
2. More information about enduring powers of attorney You can find more information about enduring powers of attorney on the New Zealand Law Society website (www.lawsociety.org.nz) and on the Ministry of Justice website (www.justice.govt.nz). The law on enduring powers of attorney is set out in Part 9 of the Protection of Personal and Property Rights Act 1988. A copy of this Act can be found on the New Zealand legislation website at www.legislation.govt.nz.
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