Leesa Speed

On 7 December 2022, the High Court heard urgent arguments regarding a six month old baby (“Baby W”) who was in Starship Hospital and required heart surgery. The parents of Baby W were not consenting to the use of blood from people who had been vaccinated for COVID-19 in Baby W’s surgery, which required the use of donated blood products. The parents of Baby W wanted only non-vaccinated blood to be used in the surgery – a process called directed blood donation. Directed blood donations Directed blood donations are blood donations arranged by an individual, family or group of people for a particular person. Directed blood donations are not a practice that is supported by the New Zealand Blood Service (“NZBS”) due to there being no evidence that they lead to improved patient care. It is also thought that directed blood donations can increase the risk of acquiring transfusion associated infections (such as where a donor feels pressured to answer incorrectly to the pre-donation health survey in order to be allowed to donate blood for a specific person). The NZBS gave evidence in Court that there was no scientific evidence that there was any COVID-19 vaccine-related risk from blood donated by donors who were previously vaccinated with any COVID-19 vaccine approved for use in New Zealand. Other reasons against directed blood donation in these circumstances (and more widely) include: Baby W required rapid access to a full range of blood and plasma products to support the complex heart surgery; The introduction of unnecessary complexity into well-established blood collection and processing systems, translating to an increased risk of errors and possibility of inadequate blood product supply for the patient as some products, including those which Baby W was expected to require, are collected using specialised collection techniques from carefully qualified donors and are manufactured using regulated processes. Some products are even manufactured in Australia; COVID-19 vaccination (or infection) produces antibodies to the virus. There was no evidence of harm from antibodies to COVID-19 being present in blood and it was unlikely that any products of COVID-19 vaccines can end up in the blood stream. Should any such products have been in the donated blood, there was no evidence of harm from these products. Directed blood donations are also not recommended by international expert consensus guidelines, including in the United Kingdom, Australia and Canada. An instance where directed blood donations may be appropriate was said to include where a patient had a rare blood type, where no compatible volunteer donations were available. As discussed, this did not apply to Baby W’s circumstances. Guardianship Guardians need to agree on important matters such as whether medical treatment which is not routine in nature should occur. If the guardians cannot agree (for example, one guardian wants a child to be vaccinated and the other does not) then ultimately the Court can be asked to make a determination resolving the dispute between guardians.(for more information on this particular issue, see here). Sometimes parents agree but medical professionals disagree on the course of life saving treatment for a child. In this case, both parents were not consenting to the use of blood products from people who had received COVID-19 vaccination in completing heart surgery on Baby W but initially agreed that surgery needed to be completed. There were unvaccinated people that were prepared to give a directed blood donation. The Court has the ability to make an order appointing guardianship of a child under 18 years old to the Court or another named person for a specified period of time. Te Whatu Ora Health New Zealand applied to the Court for an order putting Baby W under the guardianship of the Court, so that the life saving surgery could go ahead using the NZBS available blood products (ie. blood from vaccinated and unvaccinated donors, without differentiation). The Judge took great care in their decision to acknowledge that the parents of Baby W wanted the best for their child and held genuine concerns, but ultimately agreed with expert evidence that blood donated by people who were vaccinated for COVID-19 was safe for use. The best interests of the child are the paramount consideration for the Court. Using blood from a donor of the parents’ choosing was not an available alternative, and this was not supported by doctors. Therefore, this was not a safe alternative in Baby W’s best interests. Baby W was put under Court guardianship to allow NZBS available blood products to be used for Baby W’s heart surgery effectively overruling the parents’ decision. The parents then withdrew their consent to the pre-surgery procedures and surgery generally, and the Court issued a further urgent minute widening the guardianship powers to include all necessary pre-surgery procedures and surgery generally. This is not the first, nor last time that the Court will exercise its powers to appoint the Court as guardian. Other examples of the Court intervening in this way include: For the purpose of obtaining a DNA sample to determine paternity of a child when one guardian refuses to consent to the sample being taken; Variously where religious beliefs meant that parents would not consent to a blood transfusion which was vital to a child, as well as for kidney or liver transplants which would require blood transfusion as a part of those procedures; When a baby’s mother carried hepatitis B but refused to consent to her baby receiving hepatitis B injections to stop them contracting the disease due to religious beliefs; When a nine year old’s father would not accept his child’s diagnosis of HIV, despite the child’s mother’s reason for death being recorded in part as caused by HIV. The child had also taken HIV medication for several years prior and there was serious risk to the child if the medication was not continued; and When a child’s safety is at serious risk in the care of either or both parents. Outcome An order enabling the surgery to proceed using NZBS blood products without delay was made as this was considered to be in the best interests of Baby W in the circumstances. It should be clarified that the Court intervened to the least extent possible in order to save Baby W’s life. This is a principle that the Court maintains to ensure that parents retain their guardianship rights for their children to the maximum extent possible in the child in questions’ best interests and welfare. The only act that the Court overruled the parents on, was the act of carrying out the surgery and the use of the blood products. Baby W was otherwise to remain under the parent’s guardianship once surgery was completed. The parents were informed at all reasonable times of the nature and progress of Baby W’s condition and treatment. If you find yourself facing an issue like this, the Family Law team at Holland Beckett Law would be happy to assist you in reaching resolution. The COVID Healthline is available for 24/7 advice and information in relation to COVID-19, including vaccination, on 0800 358 5453.

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.

Separation can be a difficult process. Not only are there a lot of emotions involved, but there are likely to be assets that are owned jointly, or separately but which have been used by both parties during the relationship. Working out who gets to keep what can be straight forward in some cases, but often the matter is more complex than you may expect. The Property (Relationships) Act 1976 (“PRA”) applies to marriages, civil unions or de facto relationships of three years or more. In limited circumstances, the PRA can also apply to relationships of shorter duration. What is relationship property? The PRA defines both relationship property and separate property. The family home and family chattels, whenever acquired and in whoever’s name they are legally owned, are relationship property. Contrary to popular belief, whether or not you owned the family home or chattels before the relationship, they will be relationship property dividable equally between both parties to the relationship (subject to certain limited exceptions). Family chattels can include furniture, appliances, household tools, pets, as well as cars, caravans, trailers and boats if they were used wholly or principally for family purposes. Gifts from one spouse or partner to the other are generally not regarded as relationship property – so no, you don’t have to give back the rings. Relationship property may also include superannuation and KiwiSaver, shares and investments, business interests, life insurance policies, rental and investment properties, property acquired in contemplation of the relationship, rights in respect of a trust, as well as relationship debt (which does not have to be in the parties’ joint names). Bank accounts which hold funds earned or received during the relationship are also likely relationship property despite being in the name of only one of the parties. Taonga and heirlooms, as well as chattels used wholly or principally for business purposes, are excluded from the definition of family chattels. This means these items will usually be separate property rather than relationship property, however this is decided on a case-by-case basis. What is separate property? Any property that is not relationship property is separate property. Such property does not need to be divided between the parties to the relationship. Generally, separate property also includes: Property which was acquired by either party whilst they were not in a relationship and that has not been used during the relationship for family purposes; Property acquired out of separate property or any proceeds of sale of separate property; Any increase in value of separate property and any increase in income or gains derived from separate property; Property acquired from a third person by gift, inheritance, or as a beneficiary of a third person’s trust. It is important to keep property acquired by succession, survivorship, gift, or under a third party’s trust separate if you intend it to be separate property. If property can be seen to have been intermingled with relationship property, making it unreasonable or impracticable to regard it as separate property, it will become part of the relationship property pool. How is relationship property divided? While relationship property is generally divided equally between the parties of the relationship, there are limited circumstances where division should occur in unequal proportions. This may be due to economic disparity between the parties because of the effects of the division of functions within the relationship or in extraordinary circumstances that would make equal sharing repugnant to justice – although this is a high threshold to meet. Disclosure In order for your lawyer to advise you on what the full relationship property pool consists of and what your legal entitlements are, a process of disclosure by both parties of all assets, debts and interests must take place. Values will be determined, as well as the status of the item as relationship property or separate property. Following the completion of that process, the division of property can usually then be agreed by way of negotiation. Will we need to go to Court? Most people do not need to resort to the Family Court in order to resolve their relationship property division. It is only if an agreement cannot be reached between you and your former spouse/partner that Court proceedings are needed. Who gets what? You won’t walk away with half of a car so don’t get the chainsaw out. Generally, global division of relationship property can be reached without property needing to be sold – or cut in half. This involves taking into account the total value of the assets being retained by each party, and one global adjustment figure being paid by one party to the other party to ‘equalise’ the overall division so that each party is keeping 50% of the total net value of the relationship property pool. What about the pets? With the classification of pets such as cats and dogs as family chattels, you obviously will not both be able to keep your fur babies. The court has formulated their own way of determining who gets to keep the pet based on the pet’s best interests. This means the court considers things like who takes the best care of the pet, who is able to provide the best home for the pet and the pet’s needs. Independent legal advice Each party must receive independent legal advice as part of entering into a legally binding Separation Agreement. To be valid as a full, final and binding settlement, any agreement must be in writing and signed by both parties after independent legal advice and in the presence of their lawyers. If you find yourself experiencing a break up of a long term relationship, the specialist Family Law team at Holland Beckett can offer you practical and pragmatic advice with care and sensitivity. We have a team of lawyers who are experienced in negotiating and drafting Separation Agreements, or taking matters to court if needed.