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 con-cerning 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 deci-sions, 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.
Table of Contents
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
Research Objectives & Key Themes
This paper investigates whether the "family group conference" model, currently used in New Zealand under the Children, Young Persons, and Their Families Act 1989, should be introduced as an additional decision-making mechanism for adults who lack the capacity to manage their own affairs.
- Evaluation of the current adult guardianship legal regime.
- Comparison with the family group conference model.
- Analysis of potential benefits for the protected person's best interest.
- Integration of cultural perspectives, specifically Maori concepts of family responsibility.
- Addressing potential concerns regarding decision-making authority and state oversight.
Book Excerpt
1 Determination of the Protected Person’s Best Interest
As seen above, it is a fundamental principle of adult guardianship law that the concerned person’s best interest is of paramount consideration. Thereat, the principle of least restrictive intervention calls for a subjective approach when determining what actually constitutes this best interest. Taking into account the concerned person’s personal views and values requires a certain familiarity with that person. Where the concerned person has granted someone he or she is trusting with enduring powers of attorney, or where a family member is acting as welfare guardian or manager, this is not so much of a problem. These people know the protected person usually very well and can therefore estimate how that person would have decided if he or she was still capable of doing so.
However, in many cases it is the Court or a welfare guardian or manager from outside who makes the decision on behalf of the protected person. The deciding judge may not have met the person subject to the application before, so that he or she will have difficulties to determine what actually lies in the that person’s best interest. Of course the Court can collect evidence, including the calling of witnesses and reports. Furthermore, it can serve family members, who are close with the subject person, with notice so that they have a right to appear before the Court and to be heard as a party. By these means the Court can acquire knowledge about the concerned person’s living situation, and maybe even about his or her personal views and values. But, considering the short amount of time available and the busy atmosphere of Court proceedings, this acquired knowledge will only be vicarious and superficial. A Court will never be able to reach the same familiarity with the subject person’s values and views as the familiarity resulting from a longstanding close family relationship. Besides, judges do not have any personal relationship with the subject person and are therefore much less affected to this person than a caring family member. Subsequently, they put less effort in the determination of what really is in the subject person’s best interest.
Summary of Chapters
I INTRODUCTION: Outlines the scope of the paper, identifying the current legal limitations for adults lacking capacity and proposing the family group conference as a potential solution.
II THE CURRENT REGIME OF DECISION-MAKING IN ADULT GUARDIANSHIP LAW: Examines the existing legal framework under the Protection of Personal and Property Rights Act 1988, including court roles and principles.
III THE FAMILY GROUP MODEL UNDER THE CHILDREN, YOUNG PERSONS, AND THEIR FAMILIES ACT 1989: Describes the procedural and operational mechanics of the family group conference model as it currently exists for minors.
IV PROS AND CONS OF THE FAMILY GROUP CONFERENCE BEING INTRODUCED FOR THE AFFAIRS OF ADULT FAMILY MEMBERS: Critically evaluates the potential to remedy current legal shortcomings through this model and addresses counter-arguments and potential risks.
V HOW SHOULD THE FAMILY GROUP CONFERENCE WORK REGARDING THE AFFAIRS OF ADULT FAMILY MEMBERS?: Outlines the suggested administrative and procedural framework for adapting the model for adult guardianship.
VI CONCLUSION: Summarizes the findings, confirming that the benefits of introducing the model outweigh the identified risks and recommending its adoption.
Keywords
Adult Guardianship, Family Group Conference, New Zealand Law, Protection of Personal and Property Rights Act 1988, Maori Culture, Best Interest Principle, Decision-making, Family Responsibility, Capacity, Welfare Guardian, Manager, Children Young Persons and Their Families Act 1989, Legal Reform, Self-determination.
Frequently Asked Questions
What is the core focus of this research paper?
The paper evaluates whether the "family group conference" model, currently applied to children in New Zealand, can be successfully adapted as an additional decision-making tool within the adult guardianship legal framework.
What are the primary themes discussed?
The themes include the limitations of the current court-centric system, the cultural importance of wider family ("whanau") in Maori society, the principle of "best interest," and the balance between state intervention and family autonomy.
What is the primary objective of the proposed legal change?
The goal is to allow for deeper, more subjective, and culturally informed decision-making for adults who cannot handle their own affairs, thereby promoting their wellbeing and autonomy more effectively than current impersonal legal procedures.
Which legal methodology is employed?
The author performs a comparative legal analysis, contrasting the Protection of Personal and Property Rights Act 1988 with the Children, Young Persons, and Their Families Act 1989, supported by interviews with legal professionals.
What is covered in the main body of the work?
The main body examines the current system's shortcomings—such as lack of cultural sensitivity and the dominant role of the state—and presents the arguments for and against introducing the family group model to address these issues.
Which keywords best characterize this research?
The key concepts include Adult Guardianship, Family Group Conference, Best Interest Principle, Maori Culture, and legal reform within the New Zealand legislative context.
How does the paper address the cultural differences within New Zealand?
It highlights that the current system is based on Pakeha/individualistic models and argues that incorporating the Maori concept of the "whanau" would respect cultural diversity and provide more holistic support for the concerned person.
How does the author handle potential conflicts of interest within a family?
The author suggests that while such risks exist, the oversight of a Co-ordinator and the residual supervisory role of the Family Court act as necessary safeguards to ensure decisions prioritize the protected person's best interest over competing family interests.
- Citar trabajo
- Julia Honds (Autor), 2006, The family group conference as a means of decision-making in matters of adult guardianship, Múnich, GRIN Verlag, https://www.grin.com/document/80621
