OG v JK

 
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[2016] NZFC 9831

IN THE FAMILY COURT AT AUCKLAND

FAM-2015-004-001072

In the Matter of the Protection of Personal and Property Rights Act 1988

BETWEEN
OG
Applicant
and
JK
Other Party
VK
Person in Respect of Whom the Application is Made
Appearances:

GA Ireland for the Applicant

LJ Kearns for R Hucker for the Other Party

S Jefferson QC for the Subject Person

EDITORIAL NOTE: NAMES AND/OR DETAILS IN THIS JUDGMENT HAVE BEEN ANONYMISED.>

NOTE: PURSUANT TO S 80 OF THE PROTECTION OF PERSONAL AND PROPERTY RIGHTS ACT 1988, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE HTTP://WWW.JUSTICE.GOVT.NZ/FAMILY-JUSTICE/ABOUT-US/ABOUT-THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING-JUDGMENTS.

Application for an interim order appointing the applicant as the welfare guardian of her mother or alternatively, for personal orders pursuant to s10 Protection of Personal and Property Rights Act 1988 (“PPPRA”) (kinds of orders), requiring the applicant'mother to return to New Zealand for her rehabilitation, an order revoking the Enduring Power of Attorney (“EPA”) as to welfare granted by the applicant'mother to her son under s105 PPPRA (Court may revoke power of attorney), orders reviewing decisions made by the son while their mother was ill and for any order the Court thought fit under s103 PPPRA (review of attorney'decisions) — the mother and son had been travelling in Europe in October 2015 when she contracted a listerial meningitis — she remained overseas in a clinic for rehabilitation — the applicant claimed her brother was refusing to consult with her or provide medical information — whether the EPA should be revoked.

RESERVED JUDGMENT OF JUDGE A J Twaddle

[Jurisdiction to Revoke Enduring Power of Attorney and to Review Attorney'Decisions]

1

This case is about VK and an Enduring Power of Attorney (“ EPA”) she signed in favour of her son, JK.

Background
2

Mrs VK signed the EPA in 2014. There is no issue that the EPA related only to Mrs VK'personal care and welfare and that it did not take effect unless Mrs VK was incapacitated.

3

Mrs VK is 84. In October last year, while travelling in Europe in the company of Mr JK, Mrs VK contracted a listerial meningitis. She was admitted to a hospital in [location deleted] in a critical condition. She suffered numerous complications, including what has been described as a “multi-factor limited hyperactive delirium”. Following treatment her condition improved. She was discharged from hospital on 16 February this year on multiple medications and with a recommendation for ongoing monitoring, medication adjustment and continuation of intensive physiotherapy.

4

Mrs VK then entered a clinic near [location deleted] where she has undertaken therapy, including gym work and walking retraining.

5

At the Court'direction, an Auckland specialist psycho-geriatrician, Dr Casey, travelled to [name of country deleted] and, with Mrs VK'consent, examined her on 29 and 30 March.

6

In her report dated 5 April, Dr Casey concluded that during the protracted acute phase of her illness, when Mrs VK suffered from the prolonged and multi-factional delirium, her mental and cognitive state would have been affected, and her capacity to make decisions about matters affecting her health would have been compromised. But by 29-30 March there was, in Dr Casey'opinion, no evidence of a delirium, and during the timeframe of the assessment Mrs VK demonstrated the capacity to decide with respect to health matters and, crucially, with respect to the place where she would undertake rehabilitation. Dr Casey said:

Mrs VK, on the dates of 29 and 30 March, 2016, knew she was in the REHA Clinic in [name of country deleted]. She was of the firm view that this clinic was providing the best possible rehabilitation available to her at this time. She expressed a consistent determination to be able to walk again for her return to New Zealand. She could understand that there is an ongoing risk of infection in hospital settings. She also could understand that there was a possibility that her situation could change and that the rate of improvement could slow. She expressed the choice that she wished to persevere and that she would consider the options if and when that scenario should arise.

I have been informed by two independent medical professionals that Mrs VK is stubborn, optimistic and efficient, and may formulate her own views on treatments and options in relation to health matters. It was also evident in this assessment that Mrs VK is resilient and realistic. Mrs VK knew that on her return to New Zealand, rehabilitation would be ongoing and that she would require additional formal supports in her ongoing recovery.

Thus, in my opinion, during the timeframe of the assessment, Mrs VK demonstrated the capacity to decide with respect to these health matters.

The proceedings
7

By an amended application filed on 6 April, Mrs VK'daughter OG applied for:

  • (a) An interim order appointing her, or any other suitable person approved by the Court, to be welfare guardian of Mrs VK;

  • (b) Alternatively, for personal orders pursuant to s 10 of the Act, requiring Mrs VK to return to New Zealand on such conditions as the Court should approve for her rehabilitation in New Zealand;

  • (c) An order revoking the EPA as to welfare granted by Mrs VK to Mr JK (s 105 of the Act);

  • (d) Orders reviewing decisions made by Mr JK while Mrs VK was ill in [location deleted] and for any order the Court thinks fit (s 103 of the Act);

  • (e) Such further or other orders or directions as the Court thinks fit.

8

Ms OG no longer wants to pursue her application for an interim order appointing a welfare guardian or for personal orders requiring Mrs VK to return to New Zealand for rehabilitation.

9

The grounds for the application for orders under ss 105 and 103 of the Act are:

  • (a) JK had acted unreasonably in exercising his powers pursuant to the EPA and would continue to do so if given the opportunity;

  • (b) JK had exercised undue influence over Mrs VK and would continue to do so;

  • (c) JK'interests conflicted with the interests of Mrs VK.

Context
10

Ms OG'affidavit evidence was:

  • (a) She and two other family members went to the hospital immediately they were notified Mrs VK had been hospitalised. They stayed in [location deleted] for six days;

  • (b) Mr JK had convinced the hospital authorities that he had sole power to make decisions over who could and could not see Mrs VK. While they were able to see Mrs VK, the time they could spend with her was very limited and Mr JK had denied them contact on every possible occasion;

  • (c) Mr JK did not adopt a consultative approach about Mrs VK'medical condition or about decisions relating to her care; on the contrary he was obstructive and bullying;

  • (d) The family left [location deleted] due to the continual obstruction by Mr JK in terms of them receiving information from the medical personnel and also because of his controlling behaviour with respect to them visiting Mrs VK;

  • (e) Mr JK appeared to have become fixated with the idea of Mrs VK remaining in [location deleted] for her rehabilitation and had not looked at the option of her returning to New Zealand by air ambulance as recommended by the insurers and medical staff at the hospital;

  • (f) Mrs VK had expressed a wish to her that she wanted to return to New Zealand to be close to her home and family;

  • (g) After she left [location deleted] she was not able to speak personally to Mrs VK. She believed that Mr JK was behind Mrs VK not accepting her calls;

  • (h) She accepted that Mrs VK was very well treated by the hospital staff at the [location deleted] Hospital.

11

RG, a grandson of Mrs VK, visited her in [location deleted] hospital. His affidavit evidence was:

  • (a) Mr JK seemed to be in total control of the situation and made decisions without consulting Ms OG or him;

  • (b) Mr JK kept them from receiving relevant medical information about Mrs VK;

  • (c) He and other members of the family became concerned about Mrs VK'safety and that they might never see her again in New Zealand, and he recorded some of the conversations which took place (some with all of the family present; some when only Mr JK and Mrs VK were present);

  • (d) Mr JK appeared to make completely disparaging remarks...

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