What happens when a family member becomes mentally incapable through injury or illness and there is no enduring power of attorney in place?
What if my child is born with an intellectual disability and they are unable to care for themselves and sort their own finances when they are an adult?
You may be able to apply to the Family Court for appointment as a welfare guardian and/or property manager.
An application is made to the Family Court. Included with the application is an affidavit from the person who is making the application setting out what is sought and the reasons why along with a statement of consent to act as welfare guardian and/or property manager.
Generally, information from a medical professional, such as your GP, should also be filed with the application.
The Court will appoint a lawyer for the subject person (the person who the application is about). The lawyer for the subject person is responsible for obtaining the subject person’s views and is then required to report back to the Court.
The Court may appoint a welfare guardian if satisfied that:
- The subject person wholly lacks the capacity to make or to communicate decisions relating to any particular aspect or particular aspects of their personal care and welfare; and
- The appointment of a welfare guardian is the only satisfactory way to ensure that appropriate decisions are made.
The Court may appoint a property manager if satisfied the subject person lacks wholly or partly the competence to their own affairs in relation to their property.
The difference for property managers compared with welfare guardians is that the subject person only needs to partly lack competence.
The Property Manager will then have the ability to deal with the subject person’s property and potentially manage their finances.
Common examples of situations where there is a need to make an application include:
- A family member has an accident which causes them to become mentally incapable.
- A family member becomes incapable and there is no enduring power of attorney.
- A child is born with an intellectual disability and lacks the competence to manage their property.