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Accident Compensation Cases

P v H (FAMC, 14/02/08)

Judgment Text

JUDGE A J TWADDLE (reserved):
[1]
C P is the welfare guardian of and property manager for her father G H. To enable her to care for him she has rented a flat near his home. She would like her accommodation costs to be reimbursed from her father's property. 
[2]
Mr H has lived in an RSA unit at Mt Maunganui since 1985. Ms P went to live in Australia in 2000, and subsequently visited her father each year. When she visited in August 2006 she found a marked deterioration in his health. But her father refused to consider moving from his unit. So in November 2006 Ms P moved to Mt Maunganui to look after him. 
[3]
Mr H is 94. He suffers from dementia, a blood disorder, cardiac failure and he has lost the sight in one eye. 
[4]
Ms P was appointed to be Mr H's welfare guardian and property manager in September last year. She is Mr H's only immediate family member. Her appointment as welfare guardian is in relation to his day to day care, the medical treatment he receives and his accommodation. 
[5]
Ms P prepares all Mr H's meals, does his housekeeping and laundry and helps dress him. Care is also provided by caregivers from Support Net for 2 hours a day. Mr H is dependant on Ms P and the caregivers for all aspects of his personal care. 
[6]
It is not possible for Ms P to live with her father as he has a very small one-bedroom unit. She receives a weekly caregiver's allowance of $224 from WINZ. She pays $200 per week for her flat. She is not permitted to claim an accommodation allowance because her savings exceed $8,000 (she has an investment of $45,000). She brought a small amount of money to New Zealand and has been using this for living expenses. Her current financial circumstances are causing her considerable stress. She has reached a point where she is finding it very difficult to commit to continuing to care for her father. 
[7]
If Ms P is not able to continue looking after her father on a daily basis he would have to live in a nursing home. Ms P says this is not what he would want. 
[8]
Also, inquiries Ms P has made indicate that there is at least a 3-month waiting list for accommodation for a person with advanced dementia. 
[9]
As at 24 September last year Mr H had cash assets of $184,835 and shares valued at $16,000. He receives superannuation of $14,407 per year and interest of about $10,500 per year. 
[10]
If Mr H went into a nursing home he would be required to pay for his accommodation until his assets were reduced to $170,000. To Ms P this does not seem to be prudent management of her father's affairs; she believes that the income being generated from her father's assets could form the basis of a grant towards her accommodation costs. 
The issues 
[11]
The issues are: 
Whether Ms P's accommodation costs are “expenses reasonably incurred by her as welfare guardian in the exercise of the powers and duties conferred under the Act”
Whether the accommodation costs are “expenses properly incurred” by her as property manager; 
Whether the Court has jurisdiction under s 62 of the Act to transfer property from Mr H's estate to Ms P by way of a gift in compensation for her accommodation costs. 
Expenses reasonably or properly incurred 
[12]
Section 21 of the Act provides: 
“(1)
Subject to any order of a Court made under subsection 2 of this section, all expenses reasonably incurred by a welfare guardian in the exercise of the powers and duties conferred by, or under this Act, shall be charged against and payable out of the property of the person for whom the welfare guardian is acting; 
(2)
A court may order that any expenses incurred by a welfare guardian in the exercise of the powers and duties conferred by or under this Act shall be met, in whole or in part, out of the Consolidated Account from money appropriated for the purpose by Parliament; and every such order shall have effect according to its tenor. ”
[13]
Section 50 of the Act provides: 
“(1)
All expenses properly incurred by a manager under this part of this Act shall be charged against and payable out of the property of the person for whom the manager is acting; 
(2)
Except as provided by any other Act no manager shall be entitled to remuneration for his or her services unless a Court otherwise directs either in the property order or by a subsequent order; 
(3)
All such expenses, remuneration and other charges shall be payable out of the property of the person for whom the manager is acting although the person dies or the property otherwise ceases to be under the management of the manager before such a payment is made. ”
[14]
Dealing with the wider provisions of the Act, s 8 provides that the primary objective of the Court shall be to make the least restrictive intervention possible in the life of the subject person and to enable, or encourage, that person to exercise and develop such capacity as he or she has to the greatest extent possible. Section 28 is to similar effect in relation to property. 
[15]
In In the Matter of A [1996] 2 NZLR 354; [1996] NZFLR 359Has partially negative history or cases citing, but has not been reversed or overruled[Yellow] , at pp 365-366; pp 371-372 the Court held that the Act is a remedial Act concerned with the welfare and best interests of the subject person and the principles in ss 8 and 28 must be applied in this context. 
[16]
The powers and duties of a welfare guardian and property manager are set out in ss 18 and 36 Act. As welfare guardian, Ms P has a duty to promote and protect her father's welfare and best interests: s 18(3). And she has a duty to “facilitate the integration of the person of whom [she] is acting into the community to the greatest extent possible”: s 18(4)(d). As property manager, Ms P's duty is to use her father's property in the promotion and protection of his best interests: s 36(1). 
[17]
Although not directly on point, an example of expenses being charged to a subject person's estate under s 21(1) of the Act is provided by Re GML 28/8/98, Judge Doogue, DC Auckland PPPR84/90 where the Court appointed as welfare guardian a person with professional qualifications in the areas of psychology, forensic psychiatry and social work that made him particularly suited to act as a welfare guardian. In authorising the welfare guardian to charge for his professional attendances, Judge Doogue said: 
“It is unlikely that an independent third party will be found to undertake the task without any reimbursement. In the context of s 21 the words ‘all expenses reasonably incurred’ should include reimbursement for the appointee's time when the appointee has professional qualifications which will be brought to bear in which the appointee could otherwise expend in gainful employment. A contrary interpretation of the law could result in properly qualified appointees not putting themselves forward leaving less able people to assist persons with disabilities such as the subjects. ”
[18]
The Court authorised a charge of $25 per hour. 
[19]
Some assistance can be derived from Mollgaard v ARCIC [1999] 3 NZLR 735, [1999] NZAR 385Has partially negative history or cases citing, but has not been reversed or overruled[Yellow]  where the issue was whether the term “expenses actually incurred” in the Accident Rehabilitation & Compensation Insurance Regulations covered care provided by a mother to her severely disabled son where no moneys were actually paid out. The mother had been appointed her son's welfare guardian. In holding that the mother was entitled to claim the Court said: 
“Where that Guardian performs the duty [of caring for the subject person] herself, it surely cannot be the position that she cannot recover the expenses of doing so either from the protected person's estate or — effectively by subrogation — via any claim which can lawfully be made. Otherwise the Welfare Guardian is left in the position of having to bear the expense personally. And it cannot make any difference if the duty is performed by her, as opposed to the care being undertaken by a third party the Welfare Guardian chooses to employ. That must particularly be so in a situation where (as is the fact in this case) the Welfare Guardian did not have the wherewithal to engage third party caregivers. The position of the Welfare Guardian, in this respect, is analogous to the position of a trustee, who is entitled to recover her (proper) expenses. ”
[Para 41]
Decision 
[20]
In determining whether Ms P's rent costs come within s 21 or s 50 of the Act I find: 
In looking after her father Ms P is promoting and protecting his best interests. 
As a result of her efforts and the fact that she is able to live nearby, Mr H is able to remain in his unit. But for her care it is highly likely that he would have to leave his unit and go into a nursing home which would not accord with his wishes. 
By enabling Mr H to remain in the community Ms P is fulfilling part of her duty as a welfare guardian. 
By enabling Mr H to continue to live in the familiar environment provided by his unit, Ms P is enabling and encouraging him to exercise and develop such capacity as he has. 
By providing full-time daily care for Mr H, Ms P is not able to work and support herself. 
A narrow interpretation of s 21 could result in close family members not wanting to care for other family members which would not be in the interests of that person and arguably not in the public interest. 
Ms P's rent payment is reasonable. 
[21]
Having weighed these factors I am satisfied that the term “all expenses reasonably incurred by a welfare guardian in the exercise of the powers and duties conferred by the Act” is wide enough to encompass Ms P's rent payment. 
[22]
I do not consider that the rent payments are “expenses properly incurred by a manager” because they are not associated with the exercise by Ms P of the powers given to her under Schedule 1 of the Act to manage Mr H's property. 
[23]
Because I have found that Ms P's rent payments come within s 21 of the Act it is not necessary for me to consider whether Ms P could be compensated by way of a gift under s 62 of the Act. 
Orders 
[24]
I make the following orders: 
(a)
Ms P is entitled to charge against the property of Mr H the cost of renting her flat from November 2006 to the date of this order and such sum shall be paid out of his estate to Ms P. 
(b)
Ms P is entitled to charge against the property of Mr H the cost of renting her flat from the date of this order for so long as she provides for his daily care in the future. 
(c)
The costs of Ms Gravatt are to be paid in the first instance from the Consolidated Account. The full amount of Mrs Gravatt's costs is to be refunded to the Consolidated Account from Mr H's property. 

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