L T A—A W v L T W

JurisdictionNew Zealand
CourtFamily Court
Judgment Date31 March 2011
Docket NumberFAM-2009-092-002569
Date31 March 2011

In The Matter Of The Protection Of Personal And Property Rights Act 1988

Person in respect of whom application is made

A J Twaddle



Application for directions under s30A(2) Protection of Personal and Property Rights Act 1988 (temporary orders) for allocation of proceeds from sale of property — applicant was property manager for mother who suffered from dementia — application for reimbursement of expenses and remuneration under s50 (expenses of management and remuneration of managers) — whether brother should be allocated funds to purchase a house — whether applicant should have child's school fees paid — whether proposed use of money promoted the mother's best interests under s36 (functions and duties of manager).


L T A-V W in Person (by telephone)

D G W in Person

R Glynn for L T W (Subject Person)

N Tollich Counsel to assist the Court

[Directions for Property Manager]

L W is the manager of the property of her mother L T W. Ms W was initially appointed by a temporary order made in December 2009. A final order was made in January last year. The order applies to all of Mrs W' property. As manager, Ms W has all the powers specified in the first schedule to the Protection of Personal and Property Rights Act.


Mrs W is 84. She has severe dementia and lives in a dementia unit at a rest home. Medical evidence produced to the Court at the time Ms W applied to be appointed property manager established that Mrs W totally lacks the competence to manage her own affairs in relation to her property and I infer that there is no likelihood of her recovering any competence to manage her property affairs in the future.


The major asset owned by Mrs W is a house in Mangere East. In June last year Ms W applied to the Court for authority to sell the house and to use the sale proceeds “to pay for L T W' care, existing debt, any future expenses and to carry out her wishes”.


Authority to sell the property was given to Ms W by the Court on 8 November. A direction was made that the sale proceeds, after deduction of real estate agents fees, legal fees and any fees owing to the rest home where Mrs W is living, are to be paid in to Court and held on trust for Mrs W until further order of the Court. Ms W was directed to provide a brief monthly report to the Court about the sale of the property and when it is anticipated that the net sale proceeds will be deposited in Court. Mr Tollich was appointed to assist the Court on the issue of any conflict of interest on the part of Ms W and any possible jurisdictional issues.


At the hearing Ms W reported that the home was subject to an agreement for sale and purchase. The offer of $272,000.00, was subject to the purchaser obtaining finance. The property was not insured and I made a direction that the property was to be insured urgently.

Ms W' proposal

On the sale of the property, after payment of real estate agents fees, legal fees and any fees owing to Mrs W' rest home, Ms W proposed that the sale proceeds will be used as follows:

  • (a) To repay any debts owing by Mrs W;

  • (b) To set up a funeral trust for Mrs W;

  • (c) To reimburse her for her costs associated with preparing the property for sale;

  • (d) To reimburse her for her expenses associated with attending to her mother's care and affairs;

  • (e) To pay costs associated with Mrs W' ongoing medical and residential care;

  • (f) Once Mrs W is eligible for a residential care subsidy (that is when her funds do not exceed $200,000.00) Ms W proposes;

    • (i) To invest $100,000.00 in a property to be purchased by her brother D W or to lend him that amount to assist him to buy a property;

    • (ii) To invest over a two – three year period from 2012 onwards, an aggregate of $100,000.00 to pay for secondary school fees for her son S who will shortly be 12, or to borrow that amount from her mother for that purpose.


Ms Glynn and Mr Tollich filed memoranda and I heard oral submissions from Ms W, Ms Glynn and Mr Tollich. Mr D W supports his sister's application.

The evidence

Ms W filed affidavits dated 8 June 2010 and 23 February 2011.

Funeral fund


When her mother dies, Ms W wants to repatriate her to the Cook Islands to be buried. This is in accordance with a direction made by Mrs W in her will dated 5 December 1996. Ms W has obtained a quote from the Public Trust to set up a prepaid financial trust for $11,695.50.

Ms W' expenses in respect of sale of property


Although Ms W' application refers to these costs, there is no evidence that such costs have been incurred.

Ms W' expenses associated with attending to her mother's care and affairs


Ms W lives in Australia. She says managing her mother's affairs from there has been difficult. There is no money to pay an organisation like the Public Trust to manage her mother's affairs and no suitable relation. Ms W works a minimum of 37.5 hours per week for Direct Recruitment and is paid an hourly rate. She claims NZ$8,642.50 for the period October 2009 to May 2010 and NZ$5,213.06 for the period June 2010 to February 2011. Her claim for remuneration is assessed at $28.96 per hour and is based on the time she spent on her mother's affairs during normal business hours and was therefore not able to be at her paid employment. She makes no claim for time spent before work, during the evening or over the weekends. The out of pocket expenses for the period October 2009 to May 2010 include Telstra telephone call charges, the cost of internet access, postage expenses, a shower curtain for Mrs W' house, clothes for Mrs W, stationery and petrol (presumably for travel associated with Mrs W). These costs are set out in both of Mrs W' affidavits, but although she refers to exhibit 2 relating to expenses between June 2010 and March 2011, I have not been able to locate this exhibit in the documents filed.

Costs associated with Mrs W' ongoing medical and residential care


Mrs W will be eligible for a residential care subsidy once her cash assets are valued at $200,000.00 or less.

Contribution to a home for D W


Mr W is 37. He was admitted to the Bridge Programme under s 9 of the ADA Act in December 2009. He was on leave from the programme in May and June last year. Ms W said he is recovering from alcoholism, Wernickes syndrome and short— term memory loss. In June last year he was staying with friends. There is no evidence as to his current circumstances. Ms W said the contribution will be made when he is “eligible” (“eligible” meaning one year of full employment). Ms W said when her mother was placed into residential care there was never any intention of the family home being sold; the priority was to keep the home for Mr W to live in. Ms W said that the responsible investment of her mother's money in a property for Mr W would carry out her mother's wishes.

Payment of school fees for Ms W' son.


Ms W said her mother valued education highly and believes the investment of her money in providing “exceptional education” for her son would be in accordance with Mrs W' wishes. She proposed that she should be authorised to invest or borrow up to $100,000.00 to pay her son's fees for attending GGS.


Ms Glynn submitted:

  • (a) The application is for directions under s 30A(2) of the Act;

  • (b) Section 36 of the Act provides that the first and paramount consideration for a manager is the promotion and protection of the best interests of the subject person;

  • (c) Ms W' first duty as property manager is to ensure the maintenance of her mother;

  • (d) The proposed use of the house sale proceeds appears appropriate except for the contribution towards the home for Mr W and payment of the school fees. The use of money for these purposes may leave no contingency fund for Mrs W;

  • (e) Mrs W' will provides for both of her children to share equally in her estate;

  • (f) Section 62 of the Act enables the Court to direct a settlement of all or any of the property of the subject person, including transfer by way of gift of the property for the maintenance and benefit of members of the subject persons family, but, citing Butterworth's Family Law...

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