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.
exercising legal
capacity
S 8 Primary objectives of the court – least restrictive
intervention
S 12(2) High jurisdictional threshold before a welfare
guardianship order can be considered
12.4 Respect will and
preferences of the
person
S 12(7) Court to ascertain the wishes of the subject person
when deciding welfare guardianship;
S 18(4)(c) Requirement to consult with subject person
12.4 Free of conflict of
interest and undue
influence
S 12(5)(c) Requirement that there should be no conflict of
interest when appointment made
12.4 Safeguards
proportional and
tailored to individual’s
needs
S 9(2) Need to consider type of order given objectives in S 8
– including ensuring the least restrictive option is adopted
S 10 – provides a variety of orders that can be tailored to
meet the individual’s needs
12.4 Subject to regular
review
S 10 (3) Review of personal orders
S 12(8) Welfare guardianship order to be reviewed every 3
years
12.5 Right to control
finances & property
Part 5 – s 28. In making property orders primary objectives
are to make the least restrictive intervention in the person’s
affairs & encourage them to exercise and develop the
competence to manage their own property
44. While the terms of the PPPR Act are arguably consistent with the obligations under the
Disability Convention, it does include broad discretionary powers which allow the
Family Court to empower a Welfare Guardian with similarly broad discretions over a
disabled person. The breadth of these discretions is balanced in the Act by the front-end
safeguard of, first, a presumption of competence and, second, the theoretically high
jurisdictional threshold of total incapacity. At the back-end are the safeguards of regular
review and a requirement of proportionality. Within those parameters, the PPPR Act
authorises a welfare guardian’s decisions to be substituted for those of the person found
to be lacking capacity.
45. The Commission believes that these wide discretionary powers have the potential to be
applied inconsistently with the Convention if the Courts do not properly engage with
New Zealand’s obligations under the CRPD when interpreting the PPPR Act and the
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