12 June 2015

Power of Attorney: Johnston v Schurr

Control of a person’s assets under the Protection of Personal and Property Rights Act creates personal liability if acting without reasonable care but this liability does not extend to aspects of the person’s life not covered by the appointment.  A Taranaki chartered accountant was not liable for losses a client suffered because of delays in finalising a relationship property claim.
The Supreme Court was told that in 1999 the Family Court appointed accountant Christopher Schurr manager of a farming client’s assets.  The client, Mr Neil Johnston, had suffered severe brain damage in a motorcycle crash.  This appointment under the Protection of Personal and Property Rights Act required Mr Schurr to act generally in the best interests of Mr Johnston.  Prior to the accident, Mr Johnston was in the process of finalising a relationship property settlement with his wife.  Their relationship had ended three years earlier.  There had been tentative agreement for Mrs Johnston to receive some $398,000 as her share of the relationship property, but nothing was finalised before the accident.
The court was told Mr Johnston had recovered sufficiently from his brain injuries by 2003 that the Family Court discharged Mr Schurr from his role as manager and Mr Johnston resumed full control of his assets.  By this time, the value of the family farm had risen from a then government valuation of $1.1 million to $2.35 million and the relationship property claim had not been finalised.  Mr Johnston sued Mr Schurr for damages, being the increased amount now due his wife.
The Supreme Court emphasised that the Act does not give managers control over all a person’s assets; in this case only those assets and powers the Family Court decided.  When Mr Schurr was appointed manager in 1999 the court order specifically excluded authority to conclude any relationship property settlement on behalf of Mr Johnston.  The Family Court was told the Johnstons’ negotiations over relationship property had not been completed and it was now considered the family farm should be kept to assist in Mr Johnston’s long term rehabilitation.
The Supreme Court ruled Mr Schurr could not be held liable for a failure to do something he was not permitted to do. 
Johnston v. Schurr – Supreme Court (12.06.15)

15.068