Re DM  NZFC 6782
Published 16 May 2018
Application to settle property on a trust — whether in welfare and best interests of subject person — severely disabled subject person — Protection of Personal and Property Rights Act 1988, ss 6, 25 & 62 — Re SK Family Court Auckland.
The applicants applied to appoint a Welfare Guardian and a Property Manager for the subject person, who was described as severely intellectually disabled. The applicants also sought to settle property on a trust under s 62 of the PPPR Act. Counsel for the subject person raised a concern that settling the property on trust further removed the subject person's control over their property, and was concerned about what would happen if a trustee became unable to carry out their role. Counsel for the subject person sought a stipulation that the subject person be the sole beneficiary during his lifetime if any property was to be settled on the trust. Counsel for the applicants submitted that the order to settle the property on trust was primarily for the purposes of streamlining the management over the subject person's property. The applicants did not support the appointment of an independent trustee as it would be costly and the risk of trustee misconduct was negligible, and submitted that it was unnecessary and inappropriate to specify that the subject person was the only beneficiary as it was clear that the trust was for the benefit of the subject person, it would limit the trustees in a more restrictive way than limitations placed on a Property Manager, and that there were situations where it would be helpful if the trust funds could be used to benefit a family member.
The court found that it was in the subject person's best interests and welfare to allow the funds to be settled on a trust for the subject person and that there were adequate statutory safeguards in place to combat the issues identified by counsel for the subject person.
Judgment Date: 28 August 2017.
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