JO v RO [2020] NZFC 4908

Published 30 April 2021

Interim order for residence — dementia — capacity — personal care and welfare — welfare guardian — property manager — discovery — forensic accountant — Protection of Personal and Property Rights Act 1988, ss 6 & 10 — Family Court Rules 2002, rr 138 & 141. This hearing was to determine interim care arrangements for the elderly subject person, as well as to make directions on discovery and progress the welfare guardian and property manager applications. The subject person had been living in her own home until she suffered a stroke and had been admitted to hospital. The subject person's five children were in dispute about the care required for their mother, and cross-applications had been made for welfare guardian and property manager for the subject person. In order for a court to have jurisdiction under the Protection of Personal and Property Rights Act ("the Act"), it must be satisfied that the subject person lacks the capacity to understand the nature and foresee the consequences of decisions relating to their personal care and welfare, or wholly lack the capacity to communicate those decisions. Medical evidence from various medical professionals was that the subject person was suffering from a type of dementia mixed with Alzheimer's Disease and vascular disease, and that she was at a high risk of falls, impaired judgement, and self-neglect. The evidence concluded that she wholly lacked the capacity to make decisions regarding her own welfare and property and recommended placement in a care facility to ensure her daily needs were met. The applicant children disagreed on where their mother should be placed in care, noting different benefits and drawbacks to the three proposed rest homes. In weighing arguments and medical evidence, the Judge concluded the most appropriate rest home was the one located closest to the hospital, and made a six-month interim order accordingly. In relation to the discovery application, one of the parties indicated they would not comply with the application. The Judge therefore directed that that party file a response and the matter would be set down for a hearing. Judgment Date: 30 June 2020. * * * Note: names have been changed to comply with legal requirements. * * *