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

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.

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.

The issue was whether the EPA should be revoked.

Held: VK had lacked capacity for a period of about six months between October 2015 and the end of March 2016 and the EPA was in effect during that period. Since the end of March 2016, she had had full capacity to make decisions about her personal care and welfare. Section 102 PPPRA (Court'jurisdiction in respect of an enduring power of attorney) applied only when a donor had become mentally incapable remained mentally incapable. The section did not give the Court the jurisdiction to revoke an EPA.

There was a temporal aspect to the interpretation of s105(1)(a) PPPRA (Court may revoke appointment of attorney — is not acting, or proposes not to act, in the best interests of the donor) all the Court could do was look at the present situation and make a predictive assessment as to the future. VK now had full capacity; she could revoke the EPA herself should she wish to do so, or alternatively, expressly confirm it. For the Court to revoke the EPA while VK had capacity would be inconsistent with the scheme of the PPPRA and the presumption of competence. The Court did not have jurisdiction to revoke the EPA because the Court could not intervene where a donor had capacity.

The EPA had given JK authority to act in relation to VK'personal care and welfare and he was entitled in terms of the EPA to assume “full power” to act in respect of her medical treatment and personal care. The EPA had not specified any person to be consulted or to receive information and JK was therefore under no legal obligation to consult with OG; nor was he under any legal obligation to give them any information about VK'medical condition or treatment. JK'paramount consideration was to promote and protect VK'welfare and best interests. OG had accepted that VK was very well treated by the medical staff. With regard to OG'claim that JK appeared to be misleading VK about various matters and in some way exercised undue influence on her, VK had fully recovered her capacity, and it was very difficult to see what relief a Court could provide short of revoking the EPA, which the Court lacked jurisdiction to do. Those allegations would be more appropriately dealt with under s102(1)(i) PPPRA (Court could determine whether, having regard to all the circumstances and, in particular, the attorney'relationship with the donor, the attorney is suitable to be the donor'attorney) but as VK was not mentally incapable, that section had no application.

There was no reasonable basis for the application to review JK'decisions under the EPA. The application for an interim order appointing a welfare guardian was withdrawn. The application for an order reviewing the decisions made by JK under the EPA and for any other order under s103 PPRA and for an order revoking the EPA was dismissed.

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...

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