With authority transferred to Public Trust, Henry Dijkstra was stripped of authority to act under an enduring power of authority in respect of his father’s finances and ordered to account for expenses paid from his father’s money. Rather than appeal, he belatedly and unsuccessfully sought judicial review of the Family Court decision saying court failures to properly advise of a hearing date caused lack of a fair hearing and a breach of natural justice.
The Court of Appeal was told Henry’s sister Martha took exception to Henry’s management of their father’s finances before his death. Their father Gezinus died in 2020.
In 2012, Gezinus appointed Henry as his personal attorney under the Protection of Personal and Property Rights Act. By 2015, he was sharing his time between Martha’s household in Tawa and Henry’s in Carterton.
Henry subsequently took control of his father’s finances after having a doctor write a letter stating Gezinus no longer had the capacity to make decisions. Unbeknown to Henry, this did not trigger operation of the power of attorney; the doctor had not examined Gezinus at the time.
From August 2016, Gezinus went to live in Masterton care facilities. Queries by Martha about her father’s finances led to a closer examination of Henry’s use of the 2012 power of attorney. Henry was supposed to have consulted family before exercising any powers. He was prohibited from gaining any personal benefit. His failure to provide any information led eventually to a Family Court application to remove him.
Meanwhile, Henry had his father sign a replacement power of attorney: the 2017 document. A doctor confirmed he had the capacity to sign. The 2017 power of attorney did allow self-dealing and specifically allowed Henry and his family to live at Gezinus’ home and to pay their living expenses out of his bank account.
The court was told of Henry putting pressure on his father, threatening to shift overseas with his family if Gezinus did not sign.
A series of preliminary court hearings followed as Martha sought details of payments made and Henry sought validation of the 2017 version. Initially Henry had a lawyer represent him, later choosing to represent himself.
Once all issues had been clarified, a date could be set for a full Family Court hearing. Administrative errors at court meant Henry got four days notice only of the hearing. He did not attend, later claiming a breach of natural justice.
The Court of Appeal said Henry had known for months a court fixture date was pending. He had ample time to prepare even if he had short notice of the actual date. Henry could have appealed the Family Court decision made in his absence; an appeal would be a full rehearing. He had twenty working days to appeal.
The court ruled there had been no breach of natural justice. The Family Court decision stood.
With Henry still refusing to provide details of expenses paid out of his father’s money, the accounting evidence was that Henry had benefitted personally by about $136,700. This amount is to be deducted from Henry’s share of his father’s estate, the court said.
Dijkstra v. Tierney – Court of Appeal (21.08.23)
23.141