The family group conference as a means of decision-making in matters of adult guardianship

Table of Contents

Abstract

Statement of word length

I INTRODUCTION

II THE CURRENT REGIME OF DECISION-MAKING IN ADULT GUARDIANSHIP LAW
A Decision-making Forums and Procedures under the Current Adult Guardianship Law
1 The Family Court
(a) Powers of the Court
(b) Jurisdiction
(c) Procedure
2 The Welfare Guardian (Personal Affairs)
3 The Manager (Property Affairs)
4 The Attorney with Enduring Powers
B The Principles of Decision-Making
1 The Principle of Least Restrictive Intervention
2 The Principle of Encouragement
3 The Best Interest Principle
C Shortcomings of the Current System of Decision-Making
1 Determination of the Protected Person’s Best Interest
2 No Reference to Cultural Diversity - Especially Maori Culture
3 The Concerned Persons’ Readiness to Accept Heteronymous Decisions
4 The Dominant Role of the Family Court

III THE FAMILY GROUP MODEL UNDER THE CHILDREN, YOUNG PERSONS, AND THEIR FAMILIES ACT 1989
A Procedure
B Effects of the Family Group Conference’s Decision
C Participants of the Family Group Conference
D Principles of Decision-Making

IV PROS AND CONS OF THE FAMILY GROUP CONFERENCE BEING INTRODUCED FOR THE AFFAIRS OF ADULT FAMILY MEMBERS
A Would the Introduction of the Family Group Model Equate the Shortcomings of the Current Adult Guardianship Law?
1 Shortcoming 1: Difficulties in the Determination of the Best Interest
2 Shortcoming 2: No Reference to Maori Culture and Cultural Diversity
3 Shortcoming 3: Lack of Acceptance of Heteronymous Decisions
4 Shortcoming 4: Dominant Role of the State
5 Summary
B Would the Introduction of the Family Group Model Serve the Principles of Adult Guardianship Law?
1 Accordance with the Best Interest Principle
2 Accordance with the Principle of Encouragement
3 Accordance with the Principle of Least Restrictive Intervention
C Consideration of the Objections Against the Family Group Model As Such
1 Concerns Against the Functioning of Family Group Conferences
(a) General Concerns Against the Functioning of Family Group Conferences
(b) Concerns against the Functioning of Family Group Conferences within Pakeha Families
(c) Concerns against the Functioning of Family Group Conferences within Maori Families
2 Concerns Against the Strong Role of the Co-ordinator
D Summary

V HOW SHOULD THE FAMILY GROUP CONFERENCE WORK REGARDING THE AFFAIRS OF ADULT FAMILY MEMBERS?
A Administration
B Procedure
C Contents and Effects of the Family Group Conference’s Decision
D Principles of Decision-making

VI CONCLUSION

BIBLIOGRAPHY

ABSTRACT

This essay considers the question whether the family group conference should be introduced as a new and additional means of decision-making in New Zealand’s adult guardianship law. Currently the Family Law knows the family group conference only in another context: When there are special problems with children the Children, Young Persons and Their Families Act 1989 gives the family as a group the authority to make decisions concerning the child. The question is whether this procedure is also suitable for decision-making on the affairs of adult family members who are not capable of leading their lives autonomously and cannot make their own decisions, for example because they suffer from mental disease or an intellectual handicap.

After providing an overview of the current adult guardianship law, its principles and shortcomings, the family group conference will be presented and discussed as it works under the Children, Young Persons, and Their Families Act 1989. The main part of this research paper, then, deals with the advantages and disadvantages of the family group model being introduced for matters of adult guardianship. It will be considered whether this decision-making model can cope with the shortcomings of the current system and whether it serves the guiding principles of adult guardianship law. Although family group conferences do not always work without problems, this essay recommends their introduction also for adults. The inclusion of the wider family in the decision-making process has many benefits for the concerned person, especially in terms of his or her best interest being realised. Besides, the family group model fits well into the current regime, serves its guiding principles, and is able to remedy the current system’s shortcomings. Hence, the decision by the family group is of additional value when dealing with the affairs of adults who are not able to make “healthy” decisions for themselves, and should therefore be introduced as an additional means of decision-making.

STATEMENT OF WORD LENGTH

The text of this paper (excluding abstract, table of contents, footnotes and bibliography) comprises approximately 12.330 words.

I INTRODUCTION

Usually adults lead their lives autonomously. But some are not capable of doing so because they suffer from mental disease, intellectual handicap, dependency to alcohol or drugs, or unconsciousness eg after an accident. For these people the Protection of Personal and Property Rights Act 1988 (PPPR Act 1988) provides a variety of options and procedures protecting the concerned persons’ personal and property affairs. The Family Court can make specific orders with regard to certain affairs of the concerned person,^[1] or it can appoint a welfare guardian^[2] or a manger^[3] who then deal with the concerned person’s affairs. All the given options have in common that help is mainly provided by giving the authority of decision to someone else rather than leaving it with the concerned person.

There is another means of decision-making that is not yet included in the current adult guardianship law, but is in the Children, Young Persons, and Their Families Act 1989 (CYPF Act 1989): the decision by the family group conference.^[4] This model provides the wider family with the possibility to elaborated their own – legally effective - solutions where certain problems with a child occur.

This model could also be an appropriate means of decision-making regarding the affairs of adult family members who are incapable of handling their affairs autonomously and cannot make decisions on their own. This research paper investigates the question whether and how the family group conference could be introduced into the current regime of New Zealand’s adult guardianship law.

After giving an overview of the current adult guardianship law and of the way the family group conference works under the CYPF Act 1989, this essay considers the advantages as well as the disadvantages of the family group model being introduced as an additional decision-making model for the affairs of adult family members. Although family group conferences do not always work flawlessly, they involve many benefits for the concerned person, for example in terms of this person’s best interest being realised. Besides, they acknowledge the special traditional responsibilities the wider family has in Maori culture. However, not only Maori but also people from any other cultural background can benefit from this decision-making model, eg in terms feeling more comfortable in the hands of the own family than in the hands of an unfamiliar Court, welfare guardian or manager. Moreover, the family group model would serve the principles of adult guardianship law partly better than the current means of decision-making do. For these reasons, this research paper recommends the introduction of the family group conference for dealing with the affairs of adult family members who are not capable of leading their lives autonomously and cannot make “healthy” decisions for themselves.

II THE CURRENT REGIME OF DECISION-MAKING IN ADULT GUARDIANSHIP LAW

The New Zealand law concerning adult guardianship is mainly regulated by the Protection of Personal and Property Rights Act 1988, which came into force on 1 October 1988. Where an adult person is unable, or partly unable, to deal with his or her own affairs - due to mental illness, an intellectual handicap, drug addiction or other reasons - the Act provides several possibilities to make decisions on behalf of this person. These decisions can either be made by the Family Court,^[5] by a court appointed welfare guardian^[6] or manager,^[7] or by an attorney with enduring powers.^[8] All these different decision-making bodies have to follow certain procedures and principles to make sure that the civil rights of the concerned adult do not get infringed, and to promote this person’s wellbeing.^[9] They have to strike an appropriate balance between the concerned person’s protection on the one hand, and, on the other hand, the freedom of this person to make his or her own decisions and to lead his or her life autonomously.

It is important to understand this current regime of decision-making, its procedures and, most importantly, its principles before considering the family group conference as a new and additional means of decision-making. Only when this regime is understood properly it is possible to judge whether the family group conference would serve the purposes of the current law similarly or even better, whether it would be commensurate with the principles of adult guardianship law, and whether it is able to cope with the shortcomings of the current regime. Therefore, the current adult guardianship law and its principle and potential shortcomings will be considered first, before the family group conference and its introduction for adult guardianship matters can be investigated.

A Decision-making Forums and Procedures under the Current Adult Guardianship Law

1 The Family Court

(a) Powers of the Court

Under the current adult guardianship law the Family Court has a very strong and guiding role and broad powers throughout all proceedings dealing with adults who are unable to make decisions on their own.^[10] Where the Court has jurisdiction,^[11] it has the power to make specific orders regarding certain personal affairs of the concerned person, for example regarding living arrangements,^[12] medical advice or treatment,^[13] or educational, rehabilitative or therapeutic services.^[14] Supplementary orders and directions are always possible where they are expedient or necessary to give effect or better effect to the court order.^[15] Apart from these orders which are generally related to a specific and single situation, the Family Court can also, as a long term measure, appoint a welfare guardian who then looks after the subject person’s personal affairs^[16], or a manager who then administers the subject person’s property affairs.^[17] The Court determines which powers the welfare guardian respectively the manager has by specifying the aspects of the concerned person’s life that should be subject of the guardianship respectively the management.^[18] Besides, the Court has a monitoring function in that it reviews the welfare guardian’s respectively the manager’s decisions.^[19] The Family Court holds a similar controlling function regarding the powers of an attorney with enduring powers.^[20]

(b) Jurisdiction

Before the Family Court can exercise these powers (making specific orders, appointing a manager etc) it has to have jurisdiction over the concerned person. The crucial point of the jurisdiction test is the question whether the concerned person lacks capacity (where the application has been made for a personal order)^[21] or competence (where the application has been made for a property order).^[22]

Lack of capacity means either the – complete or partial - inability to “understand the nature, and to foresee the consequences, of decisions in respect of matters relating to [one’s] personal care and welfare”^[23] or the complete inability “to communicate decisions in respect of such matters”^[24]. In both cases the concerned person cannot deal with his or her affairs autonomously and needs help from outside. However, it has to be born in mind that any intervention in a person’s life is a denial of his or her civil rights.^[25] Therefore, a lack of capacity must not be assumed carelessly. Each case has to be assed individually and assumptions merely based on categories, eg age, mental illness or drug addiction, are not permissible.^[26] Besides, the question whether the concerned person lacks capacity must not be answered by applying an objective standard.^[27] A person does not lack capacity merely because he or she is eccentric and fails to act like an average reasonable person.^[28] Although the making of imprudent and unreasonable judgements can be evidence of a lack of capacity, the capacity test is an individual and subjective one and is only failed where the concerned person definitely is not able to understand the decisions at issue.^[29] These considerations are supported by the statutory presumption of competence according to which every person is presumed to have full capacity until the contrary is proved.^[30] The burden of proof therefore lies on the applicant who seeks the Court’s order.

Where the application has been made for a property order a similar presumption of competence is in place.^[31] Therefore, a property order is only possible where the concerned person’s lack of competence is proven. Lack of competence refers to the inability to manage one’s financial affairs.^[32] Thus, it is not the inability to understand or communicate decisions related to one’s financial affairs, but the inability to actually manage these affairs, which is decisive. Apart from that different reference point of inability, both jurisdiction tests are quite similar; ie both have to be applied carefully, on a individual and subjective basis^[33] and without the possibility to conclude the lack of competence merely because of the concerned person’s imprudent behaviour.^[34]

(c) Procedure

Proceedings under the PPPR Act 1988 can be initiated by the application of a wide range of people, including the concerned person him- or herself,^[35] this person’s relatives,^[36] a social worker,^[37] a medical practitioner,^[38] or any other person who has a legitimate interest in the concerned person’s wellbeing, the latter only with the leave of the Court.^[39]

Once an application has been filed the Court appoints a counsel to represent the person subject to the proceedings.^[40]

Certain persons, who are considered to have a legitimate interest in the concerned person’s wellbeing, are to be served with notice of the proceedings. The crucial point about being served with notice is that notification entitles the served person to appear before Court and to be heard as a party.^[41] People who are served with notice are, inter alia, the concerned person him- or herself,^[42] his or her parents,^[43] the person with whom the concerned person lives,^[44] and any other person specified by the Court.^[45] In the course of this last option, the Court may give notice also to the wider family. However, it has been observed that usually only the immediate family (ie parents, children, siblings) gets served with notice, while the wider family is left out.^[46] Thus, aunts/uncles and cousins etc usually do not have a voice when the Family Court deals with the affairs of an adult family member.

During the main proceedings the Court collects evidence^[47] (including the calling of witnesses)^[48], hears expert reports,^[49] eg from a psychiatrist or social worker, and considers the views of all parties.^[50] The Court’s discretion whether to make an order and which order to make has to be guided by the principle of least restrictive intervention,^[51] meaning that from a number of possible options the one option is to be taken that has the least adverse impact on the subject person’s life.

2 The Welfare Guardian (Personal Affairs)

The appointment of a welfare guardian is the most drastic personal order, because the welfare guardian is vested with comprehensive powers to regulate the personal affairs of the concerned person,^[52] even tough these powers are restricted to the area(s) of the person’s life for which the welfare guardian has been appointed.^[53] Therefore, the principle of least restrictive intervention requires that the concerned person wholly lacks capacity in the particular area of life for which the welfare guardian shall be appointed and that this appointment is the only possible way of dealing with the concerned person’s shortcoming.^[54]

The welfare guardian must be able and willing to act in the concerned person’s best interest.^[55] This includes the readiness and ability to enforce this person’s best interest even in situations where others, eg family members, try to assert their own interests to the detriment of the concerned person.^[56] Since family members are considered to have contrary interests more likely than people from outside the family,^[57] Courts are exhorted to be careful with choosing a family member as welfare guardian to avoid a potential conflict of interest.^[58] However, family members usually know the concerned person much better that anybody else and are more affected to him or her.^[59] Hence, there is no reason why family members generally should not be appointed as welfare guardian, especially when the Court is convinced that they are willing and able to put the concerned person’s best interest first.^[60]

In order to identify this person’s best interest, the welfare guardian is obliged to consult not only with the concerned person him- or herself,^[61] but also with any person who is, “in the opinion of the welfare guardian, interested in the welfare of the person and competent to advise the welfare guardian in relation to the personal care and welfare of that person”.^[62] Although the latter can include members of the wider family, their influence is limited. This is firstly because it depends on the welfare guardian’s discretion whether the particular person can contribute, and secondly because consultation is only mandatory “so far as may be practicable”^[63]. It has been observed that often family members are not asked for advice.^[64]

Besides promoting the concerned person’s best interest, the welfare guardian shall encourage this person to exercise and develop his or her remaining skills.^[65]

3 The Manager (Property Affairs)

Where the concerned person lacks the competence to manage his or her financial affairs, the Court can appoint a manager.^[66] Like a welfare guardian a manager must be willing and able to act in the concerned person’s best interest.^[67] Equally, when appointing a manager the Court shall take into account any potential conflict of interest.^[68] Again, a family relationship can be an incentive to check for a potential conflict of interest more carefully, but there is no reason why family members should principally not be appointed as manager.^[69] On the contrary, in Re NC the management task was transferred to family members who knew the concerned person well, because this solution was regarded more appropriate than the Public Trustee exercising impersonal management from the distance.^[70]

The promotion of the concerned person’s best interest does not always mean to pursue the best financial result, but can also include the consideration of the concerned person’s wellbeing and his or her moral obligations.^[71]

Like the welfare guardian, the manager is obliged to consult with the concerned person and any other person whose advice might be helpful.^[72] Equally, the family’s influence is very limited for the above mentioned reasons.^[73]

Like the welfare guardian, the manager shall encourage the concerned person to exercise and develop his or her skills. This can for example be done by giving back part of the control over the property under management to the concerned person.^[74]

4 The Attorney with Enduring Powers

Under Common Law an ordinary power of attorney is no longer valid once the grantor has entered the state of mental incapacity. This is because in an agency relationship the agent can only do what the grantor can do as well.^[75] In order to encourage people to act for themselves and to restrict formal interventions by the Court, the PPPR Act 1988 introduced the attorney with enduring powers.^[76] Where the donor has enough capacity to understand the nature and the effect of the enduring powers, he or she can grant someone with enduring powers with regard to both personal and property matters.^[77] The attorney can then act on behalf of the concerned person and deal with that person’s affairs, although this person is not capable of doing so by him- or herself. While enduring powers concerning property matters can come into effect immediately, enduring powers of attorney concerning personal matters can only come into force once the donor has entered the state of incapacity.^[78]

The decisions of an attorney with enduring powers are monitored by the Family Court. The Court can review specific decisions of the attorney, vary the enduring powers or even revoke them where the attorney failed to act in the donor’s best interest.^[79] The procedural rule concerning service of notice, legal representation, pre-hearing conferences etc apply.^[80]

The powers of the attorney depend on the extent to which powers have been granted by the donor. But in any case the attorney has to act in the donor’s best interest.^[81]

[...]

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^[1] Protection of Personal and Property Rights Act 1988, s 10.

^[2] Protection of Personal and Property Rights Act 1988, s 12.

^[3] Protection of Personal and Property Rights Act 1988, s 31.

^[4] Children, Young Persons, and Their Families Act 1989, ss 20 to 38.

^[5] Protection of Personal and Property Rights Act, s 10.

^[6] Protection of Personal and Property Rights Act, s 18(2).

^[7] Protection of Personal and Property Rights Act, s 38. On request of the concerned person or a third party the position of a manager can also be held by a trustee corporation without being appointed by the Family Court, see Protection of Personal and Property Rights Act, s 32(5).

^[8] Protection of Personal and Property Rights Act, ss 97(2) and 98(5).

^[9] W R Atkin “The courts, family control and disability – aspects of New Zealand’s Protection of Personal and Property Rights Act 1988” (1988) 18 VUWLR 345, 349 [“The courts, family control and disability”].

^[10] Atkin “The courts, family control and disability”, above n 9, 348.

^[11] This requirement will be explained shortly.

^[12] Protection of Personal and Property Rights Act 1988, s 10(1)(e).

^[13] Protection of Personal and Property Rights Act 1988, s 10(1)(f).

^[14] Protection of Personal and Property Rights Act 1988, s 10(1)(g).

^[15] Protection of Personal and Property Rights Act 1988, s 10(4).

^[16] Protection of Personal and Property Rights Act 1988, s 12.

^[17] Protection of Personal and Property Rights Act 1988, s 31.

^[18] Protection of Personal and Property Rights Act 1988, ss 18(2), 29(3), 31(1) and 38(1).

^[19] Protection of Personal and Property Rights Act 1988, s 89.

^[20] Protection of Personal and Property Rights Act 1988, s 103.

^[21] Protection of Personal and Property Rights Act 1988, s 6.

^[22] Protection of Personal and Property Rights Act 1988, s 25.

^[23] Protection of Personal and Property Rights Act 1988, s 6(1)(a).

^[24] Protection of Personal and Property Rights Act 1988, s 6(1)(b).

^[25] LexisNexis John Lulich (ed), Family Law Service, Protection of Personal and Property Rights Act, (online commentary, LexisNexis, Wellington, 1980) para 7.801 <http://helicon.vuw.ac.nz:2467/nz/legal/search/servicessubmitForm.do> (last accessed 24 August 2006).

^[26] LexisNexis John Lulich (ed), Family Law Service, Protection of Personal and Property Rights Act, above n 25, para 7.813.

^[27] Susan Potter “Protection of Personal and Property Rights Act 1988” (1989) 6 AULR 281, 283.

^[28] Protection of Personal and Property Rights Act 1988, s 6(3).

^[29] BF v SF (1992) 9 FRNZ 231, 237 (FC) Boshier J; Re RMS (1993) 10 FRNZ 387, 392 (FC) Inglis QC J.

^[30] Protection of Personal and Property Rights Act 1988, s 5.

^[31] Protection of Personal and Property Rights Act 1988, s 24.

^[32] LexisNexis John Lulich (ed), Family Law Service, Protection of Personal and Property Rights Act, above n 25, para 7.844.

^[33] LexisNexis John Lulich (ed), Family Law Service, Protection of Personal and Property Rights Act, above n 25, para 7.844.

^[34] Protection of Personal and Property Rights Act 1988, s 25(3).

^[35] Protection of Personal and Property Rights Act 1988, s 7(a) and s 26(a).

^[36] Protection of Personal and Property Rights Act 1988, s 7(b) and s 26(b).

^[37] Protection of Personal and Property Rights Act 1988, s 7(c) and s 26(c).

^[38] Protection of Personal and Property Rights Act 1988, s 7(d) and s 26(d).

^[39] Protection of Personal and Property Rights Act 1988, s 7(h) and s 26(i).

^[40] Protection of Personal and Property Rights Act 1988, s 65(1).

^[41] Protection of Personal and Property Rights Act 1988, s 63(3).

^[42] Protection of Personal and Property Rights Act 1988, s 63(1)(a).

^[43] Protection of Personal and Property Rights Act 1988, s 63(1)(b).

^[44] Protection of Personal and Property Rights Act 1988, s 63(1)(c).

^[45] Protection of Personal and Property Rights Act 1988, s 63(1)(g).

^[46] Interview with D, anonymous Pakeha solicitor (the author, Tauranga, 6 October 2006).

^[47] Protection of Personal and Property Rights Act 1988, s 77.

^[48] Protection of Personal and Property Rights Act 1988, s 78.

^[49] Protection of Personal and Property Rights Act 1988, s 76.

^[50] The Court is obliged to consider the views of all parties. See LexisNexis John Lulich (ed), Family Law Service, Protection of Personal and Property Rights Act, above n 25, para 7.875.

^[51] Protection of Personal and Property Rights Act 1988, s 8(a) and 28(a).

^[52] Protection of Personal and Property Rights Act 1988, s 18(2).

^[53] Protection of Personal and Property Rights Act 1988, s 12; Re L (1993) 11 FRNZ 114, 116 (FC) Inglis QC J.

^[54] Protection of Personal and Property Rights Act 1988, s 12(2).

^[55] Protection of Personal and Property Rights Act 1988, s 12(5)(b).

^[56] LexisNexis John Lulich (ed), Family Law Service, Protection of Personal and Property Rights Act, above n 25, para 7.825.

^[57] Atkin “The courts, family control and disability”, above n 9, 352.

^[58] Protection of Personal and Property Rights Act 1988, s 12(5)(c).

^[59] LexisNexis John Lulich (ed), Family Law Service, Protection of Personal and Property Rights Act, above n 25, para 7.825.

^[60] Atkin “The courts, family control and disability”, above n 9, 357.

^[61] Protection of Personal and Property Rights Act 1988, s 18(4)(c)(i).

^[62] Protection of Personal and Property Rights Act 1988, s 18(4)(c)(ii).

^[63] Protection of Personal and Property Rights Act 1988, s 18(4)(c).

^[64] Interview with D, anonymous Pakeha solicitor (the author, Tauranga, 6 October 2006).

^[65] Protection of Personal and Property Rights Act 1988, s 18(3) and 4(a).

^[66] Protection of Personal and Property Rights Act 1988, ss 25 and 31.

^[67] Protection of Personal and Property Rights Act 1988, s 31(5)(b).

^[68] Protection of Personal and Property Rights Act 1988, s 31(6).

^[69] Atkin “The courts, family control and disability”, above n 9, 357.

^[70] [1956] NZLR 259, 261 (SC) Gresson J; being a decision under the Aged and Infirm Persons Protection Act 1912.

^[71] Re Lane [1990] NZFLR 79, 81 (FC) Inglis QC J.

^[72] Protection of Personal and Property Rights Act 1988, s 43.

^[73] See above Part II A 2 The Welfare Guardian (Personal Affairs).

^[74] Protection of Personal and Property Rights Act 1988, s 36(2).

^[75] LexisNexis John Lulich (ed), Family Law Service, Protection of Personal and Property Rights Act, above n 25, para 7.890; Andrew Long Powers of Attorney and Other Instruments Conferring Authority (ICSA Publishing, Cambridge, 1987) 41; F M B Reynolds Bowstead and Reynolds on Agency (16ed, Sweet&Maxwell, London, 1996) 38.

^[76] Protection of Personal and Property Rights Act 1988, s 95; LexisNexis John Lulich (ed), Family Law Service, Protection of Personal and Property Rights Act, above n 25, para 7.890.

^[77] Re Tony (1990) 5 NZFLR 609, 624 (FC) Inglis QC J; Re EW (1993) 11 FRNZ 118, 120 (DC) Robinson J.

^[78] LexisNexis John Lulich (ed), Family Law Service, Protection of Personal and Property Rights Act, above n 25, para 7.893.

^[79] Protection of Personal and Property Rights Act 1988, s 105(1).

^[80] Protection of Personal and Property Rights Act 1988, s 108.

^[81] This can be concluded from the Court’s power to revoke the enduring powers of attorney where the attorney fails to act in the donor’s best interest. See Protection of Personal and Property Rights Act 1988, s 105(1).