Caregivers and legal guardians

The term caregiver covers a range of caring arrangements from emergency and respite care through to permanent care. A caregiver can be a person with or without legal orders for the child, such as guardianship orders or parenting orders.

A legal guardian is a natural parent (a natural guardian), a person appointed as a guardian by the Family Court (a court-appointed guardian), or a person appointed as a testamentary guardian by the child's natural parent.

The Family Court or High Court can also appoint themselves as a guardian. In these cases the court often appoints Oranga Tamariki to act on the court’s behalf. This is known as Guardianship of the Court, or Ward of the State.

A caregiver or legal guardian is not a parent for the Student Allowance parental income test if they are:

• receiving or have received a Foster Care Allowance, Orphan's Benefit or Unsupported Child's Benefit for the student
• providing or have provided a transition support living arrangement for the student under section 386AAD of the Oranga Tamariki Act 1989

If a caregiver or legal guardian is not excluded from the definition of parent for the above reasons, MSD must consider if they are acting in place of a parent of the student.

Permanent caregiver is a term used by Oranga Tamariki to describe a person who is providing a permanent care arrangement for a child. This is usually a court-appointed guardian, but it can include a caregiver who does not have legal orders.

A permanent caregiver is defined as a:

• special guardian who is appointed by the Family Court to provide a long term, safe and stable care arrangement
• person who has legal orders under the Care of Children Act 2004 in substitution for a section 140 agreement under the Oranga Tamariki Act 1989
• person who provides a permanent living arrangement without having legal orders, after custody orders in favour of the chief executive of Oranga Tamariki have been discharged. This is sanctioned through a family group conference.

Most permanent caregivers will receive Foster Care Allowance, Orphan's Benefit or Unsupported Child's Benefit for the student at some point. This means they are not considered parents for Student Allowance. If a permanent caregiver has not received one of these payments, MSD must consider if they are acting in place of a parent of the student.

Permanent caregivers may also receive financial assistance through the Permanent Caregiver Support Service. This service provides financial and non-financial assistance to permanent caregivers to support the needs of the children in their care. The service is provided through a non-Government organisation on behalf of Oranga Tamariki.

Generally financial assistance provided through the service is for one off or short term needs and is not regular or ongoing. This means a permanent caregiver who has received financial assistance from the service is still likely to have overall financial responsibility for the student.

The Family Court can appoint someone who is not already a natural guardian of a child to be that child’s guardian.

A court-appointed guardian can be a joint guardian along with any other guardians, or a sole guardian of the child.

If a court-appointed guardian is not excluded from the definition of parent, MSD must consider if they are acting in place of a parent.

A parent can name a person in their will to be their child's testamentary guardian if the parent dies.

Their role is like other guardians, but they do not have rights to the day to day care of the child.

A testamentary guardian can apply to the Family Court for a parenting order to gain these rights, and may also get Foster Care Allowance, Orphan's Benefit or Unsupported Child's Benefit for the child.

Testamentary guardians who do not have a parenting order cannot be considered as acting in place of a parent of the student.