Adults with Incapacity Amendment Act: consultation
Applications where there is a guardian, continuing attorney or intervener with powers relating to the funds in question
The Adults with Incapacity Act (AWI Act) states that an application cannot be made in the case of an adult in relation to whom there is a guardian, continuing attorney or intervener with powers relating to the funds in question.
There are cases where an application for Access to Funds (ATF) may be necessary where there is an intervener or guardian in place in relation to the same funds. For instance interveners may have a power to transfer funds (perhaps from the sale of a house or other asset) into an account that in accordance with the least restrictive intervention principle ought thereafter to be administered under Part 3 of the AWI Act. In order to have a seamless transition, it may be preferable for the application to access funds to be made whilst the intervention order is still operative. The intervention order will fall once the powers in it have been used.
There is also the possibility that a guardianship order is granted but the estate has reduced so that it would be more appropriate to be managed by ATF. That would require an ATF application whilst there was a guardianship order in place in order to ensure there was no gap in protection. Transition from guardianship order to ATF is already provided for in the AWI Act. However the AWI Act itself states that an application for ATF cannot take place whilst a guardianship order for the same funds is in place, rendering the transition provisions inoperable.
We think that the provisions preventing ATF applications when there are attorneys with powers over the same funds should remain in place.