Submission of the New Zealand Human Rights Commission to the 18 th session of the Human Rights Council;
New Zealand’s Second Universal Periodic Review.
41. Section 5 of the PPPR Act sets out a general presumption of competence (although
referring to “capacity” in the body of the section). The jurisdictional hurdles that need to
be overcome before a Welfare Guardianship order is made require the subject person to
wholly lack the capacity to make and communicate decisions about aspects of their
personal care and welfare, as well as understand the implications of those decisions. The
appointment of a Welfare Guardian must also be the only satisfactory way of ensuring
that appropriate decisions are made relating to those areas where capacity is lacking.
42. The PPPR Act also envisages that any measures relating to the exercise of legal capacity
be proportional and tailored to their circumstances. The wording of s 12(2) makes it clear
that even though capacity must be “wholly” lacking, it need not be global since it refers
to “... any particular aspect or particular aspects of ... personal care and welfare”. It
follows that a person may well lack the capacity to make decisions in some areas but
retain the ability to do so in others. As Inglis J noted:
It is enough for the purposes of the subsection to identify particular and specific
areas in which decisions on personal care and welfare are required and the patient
“wholly” lacks the capacity to make such decisions.12
43. In fact many of the provisions of the PPPR Act clearly reflect the requirements of Article
12 of the CRPD.13
ARTICLE 12
PPPR ACT
12.1 Right to
recognition as a person
before the law
S 5 Presumption of competence/ capacity
12.2 Equal legal
capacity
S 4 Everyone presumed to have legal capacity
12.3 Provision of
S 8(b) Primary objective of court to enable or encourage
support to exercise legal person to exercise & develop such capacity as they have
capacity
12.4 Safeguards to
prevent abuse in
S 6 Court must be convinced a person lacks capacity before
making an order under Act
12
Supra fn 40 at 449
Some commentators consider that the legislation could be clearer and contain more comprehensive statements
of principle, see, Bill Atkin & Anna-Marie Skellern “Adults with Incapacity: The Protection of Personal and
Property Rights Act” in John Dawson & Kris Gledhill (ed.s) New Zealand’s Mental Health Act in Practice (
Victoria University Press, Wellington, 2013) at 352
13
10