A Protection Order can be made by the Local Court (‘the Court’) to protect the estate of a person who, due to age, disease, illness, or mental or physical weakness or ailment, is in need of having their estate protected.
A Protection Order appoints the Public Trustee of the Northern Territory, or another person, to manage part or all of a person’s estate (a person’s property and finances). The person over whose estate a Protection Order is placed is called a ‘protected person’. Their estate is called a ‘protected estate’.
The person who manages the protected person’s estate is called a ‘manager’. What a Protection Order can include The Court has the power to include terms and conditions allowing the manager, among other things, to:
- continue to make certain payments that the protected person is dependant on (for example, rent payments);
- invest whole or part of the protected estate;
- sell whole or part of the protected estate; and
exercise any right or power that the protected person would have had if the Protection Order had not been made.
Who can apply for a Protection Order
An application for a Protection Order can be made by:
- the person in need of a Protection Order;
- their spouse or de facto partner;
- a close relative of the person;
- an adopted child of the person;
- the Public Trustee; or
- anyone else approved by the Court.
When the Court will make a Protection Order
The Court will make a Protection Order if it finds that because of age, disease, illness or mental or physical infirmity, it is necessary in the interests of that person or those dependent on that person that their estate be protected.
In deciding whether to make a Protection Order, the Court will look at whether the person is unable to manage their affairs, is currently being unfairly influenced in respect of their estate, or is likely to be in the future. The Court can ask the Minister to conduct an investigation and provide a report of the investigation. The Court can use this report when deciding whether to make a Protection Order.
How to revoke or change a Protection Order
The same people who can apply for a Protection Order can also apply to have a Protection Order changed or revoked (cancelled). The Court can also decide to change or revoke a Protection Order without an application from one of these people. A Protection Order will usually stop having effect upon the death of the protected person.
The role of the manager
Unless the Protection Order states otherwise, the manager of a protected estate may, among other things:
- take and recover possession of the estate from any person;
- repair and insure the estate;
- collect and pay out money on behalf of the protected person; and
- carry on any trade or business on behalf of the protected person.
The Court can require the manager of an estate to provide the Court with a statement setting out details of the property of the estate, and an account of each transaction relating to the property. Where there is more than one manager, all must agree about decisions or actions which impact on the estate.
Impact of Advance Personal Plan If the protected person has an Advance Personal Plan, the Court must take the plan into account when deciding whether to make a Protection Order and the terms of the Protection Order.
If the Court makes a Protection Order without realising the protected person has an Advance Personal Plan, a decision maker appointed in the plan, or any other person that the Court allows may apply to the Court to have the Protection Order changed or revoked. See the DCLS Advance Personal Planning factsheet for information on Advance Personal Plans.
Impact of Enduring Power of Attorney and Guardianship Order
If the protected person has an Attorney under an Enduring Power of Attorney, or an Adult Guardian, the Court can make orders to ensure decision making power between the manager of the protected estate and the Guardian or the Attorney is reasonable and workable.
You should seek legal advice if you want to apply for a Protection Order.
Darwin Community Legal Service
Phone: (08) 8982 1111
Freecall: 1800 812 953
Office of the Public Trustee
Phone: (08) 8999 7271
Email: AGD.PublicTrustee@nt.gov.au Location:
Nichols Place, Corner of Cavenagh & Bennett Streets, Darwin NT
Darwin Community Legal Service 2015: Non-profit community groups have permission to reproduce parts of this publication as long as the original meaning is retained and proper credit is given to DCLS, as the publisher.
Disclaimer: The information contained in this publication is a guide to the law in the Northern Territory. It is not a substitute for legal advice. You should talk to a lawyer about your particular legal issue. The information contained in this factsheet is current as at September 2014.