Where someone is unable to fully manage their property or financial affairs because they are not mentally capable, a property manager can be appointed by the Family Court to look after these things for the person.
People Eligible to Have a Property Manager
A person for whom someone applies to be a property manager must:
- Live or have property in New Zealand; and
- Lack competence to manage their own affairs in relation to their property.
Who May Apply to be a Property Manager
Any of the following people may apply to the Family Court to be a property manager:
- A relative or an attorney of a person for whom an application is made
- A social worker
- A medical practitioner
- A trustee corporation
- A representative of any group that provides services and facilities to a person for whom an application is made
- Where the person for whom an application is made is a patient or resident of a care facility, the principal manager of that care facility
- A welfare guardian of the person for whom an application is made
- Any other person if granted permission by the court
Procedure of the Court
The procedure the Court follows in processing an application for an order is:
- The Court considers whether the person for whom one applies to be a property manager is eligible i.e. the person lacks competence and lives or has property in New Zealand
- The Court determines whether to make an order for the appointment of a property manager having regard to the following aims:
- Aiming for the decision to be the least restrictive intervention possible to allow for the management of the person’s affairs; and
- Aiming to enable or encourage the person whose affairs are to be managed to exercise their own managing of their affairs to the greatest extent considering their competency.
- If the Court decides to make an order, the Court then determines which rights and powers the property manager is to have and what restrictions, if any, are to be imposed on the rights and powers.
Note: A different process applies to the management of Māori land and applications must be made to the Māori Land Court.
Appointment of a Manager
- The Court can appoint one or more persons to act as manager of all of a person’s property or a specified part of a person’s property. Where two or more people are appointed property managers, they share the responsibility jointly
- A person may not be appointed a property manager for someone if they are under the age of 20 or are a body corporate
- The Court may not appoint someone a property manager unless it is satisfied:
- The person is capable of carrying out the duties of a property manager in a satisfactory way
- The person will act in the best interests of the person subject to the property order
- The person consents to being appointed a property manager
Powers of Property Managers
Where a person has been appointed the property manager for someone, subject to the terms of the property order, the property manager can:
- Take or recover possession of any property of the person subject to the property order
- Use any money belonging to the person, subject to the property order for the maintenance or benefit of the person subject to the order as well as to pay any debts, taxes or rent
- Carry on any business of the person subject to the property order
- Sell (or exchange for a property of a similar or better nature) any property of the person subject to the property order not worth more than $120,000.00 (for property worth more than $120,000.00 the property can be sold with the permission of the Court)
- Subdivide, grant easements for, let, sublet, lease or sublease any property of the person subject to the property order on such terms as the property manager thinks fit
- Grant powers of attorney to any person to do any act with the property of the person subject to the property order
Power to Draft a New Will
A property management order may include authority for the property manager to draft a new Will but this will require the Courts express permission under the order. Such a drafted will need to be submitted to the Courts and those who have a property interest in the Will are given the opportunity to be heard.
While a Will made by a property manager will remain effective even after the property management order ends, the Will can be revoked by the person subject to the property order if they regain capacity.
Rules and Responsibilities for a Property Manager
- A property manager only has the power to act as set out in the property management order issued by the Court and must not act beyond these powers
- A property manager is required, at the following periods, to prepare a financial statement for the Court detailing the property, income and liabilities of the person subject to the property order:
- Within 3 months of beginning as property manager
- Within 30 days after each year as property manager
- Within 30 days after ceasing to be property manager
- A property manager is personally liable if:
- They enter into a contract or arrangement as property manager and do not tell the other party they are acting as a property manager
- They do not act in good faith and with reasonable care when carrying actions as a property manager
- A property manager is not entitled to be paid for their services unless a Court allows it
When a Property Order Ends
A person stops being subject to a property management order:
- On their death
- Where the Family Court cancels the property management order; or
- Where the property manager goes bankrupt; or
- Where the property manager loses their mental capacity or dies.