Judge Arthur Tompkins then issued a sentence indication that was accepted, and she was sentenced, and put paid to a case that was now about four years old and the second-oldest file in the Hamilton District Court.
Smith, from the office of Ron Mansfield, KC, successfully argued that his client had not appeared before the court before and the case involved an “unfortunate cross section” of events that led it under the “sterile lights of the courtroom”.
Smith claimed that the media were only interested in her case because Mansfield was listed as her lawyer, stating that there was “nothing remarkable of any public interest” in her offending.
In granting both requests, Judge Tompkins noted that generally, and frequently, people appointed as an enduring power of attorney (EPOA) went ahead without a full awareness of the “considerable burdens in the future that will entail”.
‘Petrol, women’s clothing, vet bills, vehicle repairs’
The woman and her sibling were appointed EPOAs to their uncle’s estate in 2014.
Their obligation in signing the document states that a person with EPOA cannot use the power of attorney to benefit themselves or any other person other than the named person.
To cover any out-of-pocket expenses, the person with EPOA is expected to submit evidence or receipts.
The woman was issued with her own debit card, allowing access to her uncle’s account, in 2015.
In 2017, her uncle was deemed mentally incapable, which then invoked the earlier EPOA, and gave the woman full access and control over his finances.
He was then moved into a rest home, where he stayed until he died aged 79, in 2019.
It was then that the law firm acting as executors obtained bank statements, noticed numerous anomalies and contacted police.
An analysis of the uncle’s account found that between September 2017 and February 2019, the woman made nearly 200 transactions where receipts weren’t provided, and where a large number of them were made in the Auckland suburb where she lived.
Those transactions included petrol, groceries, household goods, vet bills, vehicle repairs, air travel, Koru club memberships, golf club fees, women’s clothing, alcohol, cafes and other entertainment expenses.
‘There was a lack of advice about her obligations’
In pushing for a discharge without conviction and name suppression, Smith explained that the woman effectively continued what was the known and accepted family arrangement of paying for her uncle, his expenses and “keeping him as a part of the family fold”.
However, when she was appointed an EPOA, there was “a lack of advice and education” regarding her obligations and responsibilities.
“And that’s not something particularly unique to these circumstances, but effectively as a result of the documentation and forms that were used at this particular time, those have subsequently improved.”
That happened due to other families being found in similar circumstances whereby families had continued to act in the same manner in which they knew and had been understood and agreed to by the family.
The conditions involving his client and family hadn’t been provided for in the EPOA document.
“Minds hadn’t turned to those particular aspects at the time the power of attorney was drafted, signed or later invoked.”
Smith said his client had a “distinguished career in customer service” in which she now held a leadership position, but was also involved in her local community and if required, she could provide a “wealth of evidence” from those that knew her to verify her character.
“[Client] was forever and always acting for the benefit of others.
“It’s that self-sacrificing nature of [defendant] that her family will be able to speak of and unfortunately it’s through the responsibility that she took on and the documentation that was inadequately set up that she has ultimately fallen foul.”
The suppression application was made because although the case had been before the court “for many years”, media were present today “and I expect that it came as a result of lead counsel’s name on the file rather than anything else”.
Smith, who works in Mansfield’s office, said it instead made for “sad reading” in that the name of a good family was being dragged through the courts.
He confirmed that there had been no family fallout.
‘A lack of meticulous record keeping’
Judge Tompkins noted that police had offered the woman diversion during the prosecution’s infancy, but that wasn’t accepted.
He agreed with Smith’s argument and granted the 106 application.
“This is one of those cases which sadly, but with reasonable frequency, do come before the court where the significant burdens taken on by persons who accept appointment as attorneys pursuant to an EPOA perhaps do not appreciate fully the significant responsibilities that they are accepting.”
He said that burden became particularly problematic when it involved a “lack of meticulous record-keeping … and justifications for expenditure”.
“Too often, and I do not make this comment particularly about this case, but in general … appointments to EPOA are accepted without an awareness of the considerable burdens that that in the future will entail.”
Belinda Feek is an Open Justice reporter based in Waikato. She has worked at NZME for 11 years and has been a journalist for 22.