Katherine Dyer

Provisions in the Residential Tenancies Act 1986 (“Act”) that enable victims of family violence to leave a tenancy at short notice are in force and can be used, with the corresponding regulations coming into force on 29 December 2022. IntroductionOn 11 August 2021, changes to the Residential Tenancies Act 1986 took effect. These changes included provisions relating to ending residential tenancies, including fixed term and periodic tenancies, on short notice if that tenant has experienced family violence during their tenancy. No financial penalty can be given to a tenant cancelling this way and the landlord’s agreement does not need to be sought. Cancelling a tenancy following family violenceTenants who experience family violence during their tenancy can cancel that tenancy by giving at least two days’ notice to their landlord. They will not need to apply to the Tenancy Tribunal. Family violence in this context is given the same meaning as under the Family Violence Act 2018 (for more information, see here). The notice itself must be given on a specified form and include certain information which has been set out in the associated regulations. This should be given to the landlord in writing. The notice will be considered to be received by the landlord from the moment it is sent, with the notice period starting the next day. The specified form can be found here. What sort of evidence of family violence is required?The notice needs to include at least one form of evidence that the tenant has experienced family violence during the tenancy. Acceptable evidence may include: a letter or email from one of a number of specified persons (which includes for example a lawyer, a social worker, a medical professional, a counsellor or Police); a Police Safety Order, a Protection Order or a charging document relating to the family violence; or a statutory declaration from the withdrawing tenant What happens once the notice has taken effect?Once the two-day notice period has passed, the tenant who is withdrawing will no longer be responsible for rent under the tenancy. If the person cancelling the tenancy is the only tenant, the tenancy will end. The normal end of tenancy requirements will apply. The cancelling tenant should give notice of their cancellation if there are other tenants remaining at the property. The notice does not have to be given in person and no evidence of family violence or other information needs to be shared. However, if no notice is given to the remaining tenants, the notice given to the landlord will still not fail. With a few exceptions, the amount of rent that the remaining tenants must pay is reduced for two weeks following the initial two-day notice period. After that, rent will return to the normal amount of rent, as per the tenancy agreement. There are options available to the remaining tenants to negotiate with the landlord to stay in the home with fewer tenants, add a new tenant, find a flat mate, or end the tenancy themselves. If a dispute arises, an application to the Tenancy Tribunal can be made to resolve the matter. Landlord obligationsLandlords are encouraged to be flexible in their response to tenants who approach them under these circumstances and must keep any information shared with them confidential, including the notice and supporting evidence. Disclosure can only be made in limited circumstances and the landlord could be liable for a fine of up to $3,000 if they unlawfully share the notice or supporting evidence. Landlords can also agree to end the tenancy early without having to be provided with the notice or supporting evidence following discussions with their tenant. Landlords can calculate the amount of the reduced rent according to section 56B(5) of the Act. Such reduction in rent is not a variation of tenancy. Once the rent returns to the normal amount, this does not constitute a rent increase. Lastly, a landlord cannot challenge a family violence withdrawal notice on the basis of there being no family violence. If you are a landlord dealing with a situation like this and unsure of your obligations, we can assist you. ConclusionIf you are being abused, remember that it is not your fault, it is not acceptable, and it is not okay. You have the right to be safe and to live a life free from family violence. These new provisions offer a way out for those feeling stuck in a violent relationship due to living commitments. The specialist Family Law team at Holland Beckett Law are available to give advice on ending tenancies at short notice due to family violence and are experienced with applying to the court for protection orders also. Do not hesitate to reach out to us if you require assistance. If you are in danger now: Phone the Police on 111 or ask neighbours or friends to ring for you. Run outside and head for where there are other people. Scream for help so that your neighbours can hear you. Take the children with you. Do not stop to get anything else. Where to go for help or more information: Shine:  Free, confidential, national helpline operates 24/7 – 0508 744 633, www.2shine.org.nz Women\'s Refuge:  Free, confidential, national crisis line operates 24/7 – 0800 refuge or 0800 733 843, www.womensrefuge.org.nz Shakti:  Providing specialist cultural services for African, Asian and Middle Eastern women and their children. Free, confidential, national crisis line operates 24/7 – 0800 742 584 It\'s Not Ok:  Free, confidential, national helpline operating 9am-11pm daily – 0800 456 450, www.areyouok.org.nz Hey Bro Helpline:  Supporting men to be free from violence:  a free, confidential, national helpline operating 24/7 – 0800 HeyBro (439 276) Elder Abuse Helpline:  A free, confidential, national helpline operating 24/7 – 0800 32 668 65, text 5032, email:  support@elderabuse.nz Youthline: A free, confidential, national helpline operating 24/7 – 0800 376 633, free text 234, email:  talk@youthline.co.nz

It is important to have Enduring Powers of Attorney (“EPOAs”) in place so that if an unexpected medical event happens the right people can look after you. If you lose your mental capacity and do not have EPOAs in place, it can be a costly, time-consuming and stressful process for your loved ones to legally have the right to look after you. The Protection of Personal and Property Rights Act 1988 (“PPPR Act”) provides what happens when a person loses their capacity to manage their personal and property affairs (both when they have EPOAs in place and when they don’t). EPOA EPOAs are legal documents that set out who can take care of your personal or property matters if you are unable to (for example, if you have a stroke, are in a coma or have a cognitive disorder). The person you appoint to look after you is called your “attorney”. There are two kinds of EPOA; property and personal care and welfare. To be valid, the Enduring Power of Attorney must be advised on by a lawyer or registered legal executive while you have medical capacity. Property The Property EPOA gives your attorney power to make decisions in relation to your money and property, such as the sale of a home or payment of your bills. You can choose whether your property attorney can act immediately (while you have capacity) or only if you lose capacity. The Property EPOA (or PPPR order – more below), can appoint one or more attorneys or a trustee corporation. You can also require your attorneys consult with or provide information to certain people. Personal care and welfare The Personal Care and Welfare EPOA gives your attorney the power to make decisions relating to your health and welfare, such as choosing a rest home, your level of care or medical treatment. The Personal Care and Welfare EPOA can only come into effect if a doctor certifies you have lost capacity and are unable to make your own decisions. The Personal Care and Welfare EPOA (or PPPR order) can only appoint one individual at a time to make decisions on your behalf. However, you can appoint successor attorneys and/or require that the first attorney consult with other people when making a decision. PPPR Act orders If EPOA are not in place when someone loses capacity, an application must be made to the Family Court to appoint someone to make decisions on your behalf. These documents can also be organised through a lawyer, but this process takes place once you have lost capacity. You therefore have less control over who is appointed. Whilst every effort is made to appoint a suitable person, it may not be exactly who you would have intended to appoint given it is not a decision in your control any longer. Why should I enact EPOA? Arranging for someone to be able to make decisions on your behalf by drafting EPOAs is a cheaper and more simple process where you are in complete control over who is appointed and what activities the appointed person can complete on your behalf, such as making gifts to family members or charity. If you lose capacity before you have EPOA in place, it is likely that someone will need to be appointed as your property manager and welfare guardian. This is so that they can enter contracts on your behalf, such as for you to be cared for in a rest home or to sell your property to help meet your care expenses and make decisions about your medical care when you are not in a position to do so yourself. Rest homes will not accept you into care if no EPOAs or PPPR Act orders are in place. PPPR Act orders process The process for applying to be a property manager or welfare guardian includes a medical assessment being conducted, the drafting of applications, affidavits and consent documents, seeking consent from interested parties, filing all documents in court, service of documents on interested parties, a lawyer for subject person being appointed and assessing the subject person, and court approval of the person to be appointed. If the appointed person is disputed, there may also need to be a court hearing. Further, once someone has been appointed to be your property manager and welfare guardian, that person must file a statement of assets and liabilities with the Court each year, and the orders need to be reviewed by the court – initially every three years, but the court may then decide that every five years is acceptable. A lawyer can assist the appointed person with this process if required, however this is likely to be at a cost to you personally. A record of income and outgoings must be kept, with any money spent for the benefit of the protected person only – not the appointed person. Public Trust conducts reviews of this. PPPR Act orders cease on death, bankruptcy and if the protected person regains capacity – although in most cases this is not likely to occur if the incapacity is due to dementia or permanent disability. At a time when you have recently lost capacity and your family needs to ensure that you are cared for appropriately, it is far simpler if you have signed EPOA which can then come into effect immediately. If you have not entered into EPOA then your family can be put in the position of having to go through the Family Court process to obtain welfare guardian and property manager orders as described above. This process takes time and effort which both increase cost. This can also mean there is a hold up in important decisions being able to be made, as it generally takes several months to work through the Court process before orders for appointment as welfare guardian/property manager take effect. It is significantly quicker and less expensive to enter into EPOAs when you have capacity, than for your family members to have to seek PPPR orders once capacity has been lost. Conclusion Just like Wills, EPOAs are important documents to draft whilst you have capacity. Having documents like these in place will save your family time, cost and stress if you lose capacity and they need to get the Family Court involved to look after your personal care and welfare, and property matters. It will ensure that the people you trust and want to take care of these roles are in position to act immediately should they need to. If you have any queries, would like to prepare EPOAs or need to apply for PPPR Act orders, please reach out to us at Holland Beckett.

COVID-19 vaccination of children as a guardianship issue On Monday, 17 January 2022, the New Zealand Government announced that tamariki and children aged five years or older are now eligible to receive two doses of the Pfizer vaccine for COVID-19 for free. However, there is no legal or regulatory requirement (vaccine mandate) for tamariki or children to be vaccinated. This means it is up to a child’s legal guardians (in most cases – their parents) to decide if they want their child to be vaccinated. Such a decision may be straightforward in many households – but what if one parent doesn’t agree? Guardianship The Care of Children Act 2004 (“COCA”) defines guardianship as having all duties, powers, rights and responsibilities that a parent of the child has in relation to the upbringing of the child. An exercise of guardianship of a child means determining for or with the child, or helping the child to determine, questions about important matters affecting the child. An important matter affecting the child includes, amongst other matters, medical treatment which is not routine in nature. Guardians are required by law to act jointly, by consulting with each other wherever practicable with the aim of securing agreement. Vaccination has been held by the Courts to be non-routine medical care and is therefore a guardianship decision. This means that one parent/guardian cannot lawfully make a decision on their own as to whether their child is to be vaccinated without consulting with the other parent. Guardianship responsibilities are a separate matter to care arrangements for the child. A parent/guardian who has day-to-day care does not have a greater say on guardianship matters than any other parent/guardian of that child, both or all guardians have an equal say. Children’s views COCA recognises that children’s views about matters that concern them must be heard and taken into account. A child’s welfare and best interests must be the first and paramount consideration in decisions concerning the child and a child’s safety must be protected. The older the child is, generally the more weight that should be attached to their views – both in and out of court. Consent to medical treatment The New Zealand Bill of Rights Act 1990 (“NZBORA”) gives everyone the right to refuse medical treatment, including children, so long as they are competent and fully understand their decision. COCA also provides that a child over the age of 16 can give or refuse consent to medical treatment. This doesn’t mean that children under 16 years of age cannot consent to medical treatment. The test is whether the particular child has sufficient maturity and intelligence to understand the nature and implications of the treatment that they are consenting to. For a child to consent to vaccination in New Zealand, a health professional must be satisfied that the child understands why the vaccination is necessary and the reasons for it. The health professional will discuss the vaccine and answer any questions that the child and their guardian may have. They must also be satisfied that the child understands the risks, benefits and outcomes involved. A recent decision in Long v Steine [2022] NZFC 251 highlights that if a child has sufficient maturity and intelligence, they may be deemed to have capacity to consent to, or refuse, medical treatment themselves. The child in this case was aged 12 and was opposed to receiving the COVID-19 vaccination. The Family Court declined to make an order that the child be vaccinated, having regard to his age, maturity and his rights under the NZBORA. The court will generally only override the views of children who are old enough to display this level of understanding in serious, usually life threatening, situations. With regards to COVID-19, and vaccinations more generally, the Courts have generally found in favour of vaccination in accordance with Ministry of Health guidelines, where there was no medical evidence that suggested that the child was at risk of the vaccine. A strong consideration is that contracting COVID-19 poses an immediate risk to a child’s physical safety, so steps should be taken towards limiting that risk wherever possible. However, there is no blanket policy applied by the Court to always find in favour of vaccination. The particular circumstances of the child in question and what decision would be in their welfare and best interests are always the Court’s focus, creating an individualistic approach to vaccination decisions. Guardianship disputes If guardians cannot agree between themselves whether their child should receive the COVID-19 vaccination, there are options available to assist. These options include: Mediation: Family Dispute Resolution services offer mediation to assist in resolving guardianship disputes New Zealand wide. An independent third party will aid the guardians to reach agreement. This option is likely to be especially helpful in cases where one party is vaccine hesitant; Engage a lawyer: Individual circumstances vary, so case-specific legal advice may help parties to find resolution without needing the Family Court; and Family Court: An application to resolve a dispute between guardians can be filed in the Family Court pursuant to s 46R COCA. In appropriate circumstances, urgency can be sought. A judge will then make the decision at a hearing as to whether the child should be vaccinated. Ultimately, the most timely and cost effective option will always be negotiating these matters with the other parent or guardian with a view to reaching agreement, wherever possible. Review of refusal to give consent There is also a process available to children who wish to seek a review of their parent or guardian’s decision to give or withhold consent. A child 16 years or older may apply to the Family Court for a review of the decision and seek an order that allows for vaccination for example. This ability relates to any important matter such as: The child’s name (and any changes to it); The child’s place of residence if it affects the child’s relationship with any parent or guardian; Other medical treatment of the child which is considered not routine in nature; Where and how the child is to be educated; and The child’s culture, language, and religious denomination and practice. This is consistent with a child’s transition from being under the guardianship of their parent or guardian and being encouraged to make their own decisions and gain independence as they get older. Therefore, a child who is between 16 and 18 years of age and wants to be vaccinated, but their parents or guardian will not consent, may apply to the Family Court to have a litigation guardian appointed to pursue a review of refusal to give consent. Alternatively, if the court believes that the child is capable of making their own decisions, the child may represent themselves. While the likelihood of a child needing to take this route to ensure they get vaccinated may be low, it is crucial that children 16 years old and over understand the importance of actively participating in decisions concerning them (depending on their level of maturity and understanding). Conclusion It is natural to have concerns about the safety of a vaccination, particularly in an era of widespread misinformation. It is important that everyone can access reliable information about the vaccine in order to make the best decision for their own health, as well as their whānau, family and communities. In many situations, engaging in wānanga, an open discussion with others about experiences, questions, fears and reservations, with a level of curiosity can resolve differences in views. Regardless, it is important to advise other parents or guardians of any scheduled vaccination and also once such vaccination has taken place. Parents/guardians should not act unilaterally in making decisions about vaccination for their children and must consult with the other parent/guardian(s). If you find yourself facing the difficult circumstances described above, the Family Law team at Holland Beckett Law would be happy to assist you in reaching resolution of the matter. The COVID Healthline is available for 24/7 advice and information in relation to COVID-19, including vaccination, on 0800 358 5453. References Vaccination for children and young people | Unite against COVID-19 (covid19.govt.nz) COVID-19 vaccine and children: Information for parents and caregivers | Ministry of Health NZ