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Planning Your Future
Written by: Anna Loach
Date: March 4, 2019
The role of enduring powers of attorney
Many of us will lose our mental capacity as we age – either suddenly or slowly over time. This means we lose the ability to make important decisions about our lives.
To plan ahead, you can make an enduring power of attorney, commonly called an EPA, giving someone else the ability to make decisions on your behalf about things like healthcare, finances and property. It is crucial that the attorney you appoint is someone you trust and who knows how you would want your life and property managed.
An enduring power of attorney gives someone else the legal right to act on your behalf. Granting an enduring power of attorney is an important decision. It is a legal requirement that you obtain legal advice from a lawyer who only acts on your behalf.
There are various options that you can have in your EPA. For example, if you appoint more than 1 attorney, you can say whether they must act together (jointly) or can act separately (severally). You can also appoint successor attorneys, cancel (revoke) previous EPAs, determine the extent of your attorney’s authority to act, and say who they must consult.
When does your EPA take effect?
You can choose whether your EPA comes into effect while you are still mentally capable or only if you become mentally incapable.
If you choose to have your EPA take effect while you are still mentally capable, it will remain in effect if you later become mentally incapable.
If you choose to have your EPA take effect only if you become mentally incapable, your attorney can act only if a relevant health practitioner has issued a medical certificate stating that you are mentally incapable or if the court has decided that you are mentally incapable.
Who does your attorney need to consult?
When acting under the EPA, your attorney must, as far as is practicable, seek advice from you and from anyone named in your EPA as someone who must be consulted (either on all matters or on the specific matters you have stated in your EPA).
If you have appointed someone to be your attorney for your personal care and welfare, and someone different to be your attorney for property, your attorneys must regularly consult each other to ensure that your interests are not disadvantaged by any breakdown in communication between them.
Your property attorney should provide your personal care and welfare attorney with any financial support (out of your property) needed for your personal care and welfare.
Your attorney must also consult any other attorney you have appointed under any other EPA that continues in effect, except a successor attorney whose appointment has not yet taken effect.
Your attorney may follow any advice received in consultation, provided that they act in good faith and with reasonable care. Your attorney has the option to apply to the Court for directions if the attorney receives conflicting advice from consultation.
What are the legal requirements for the appointment of my attorney?
- Your attorney must be at least 20 years old, have mental capacity and not be bankrupt.
- Your enduring power of attorney must be in the form prescribed in the PPPR Act.
- Before you sign an enduring power of attorney, the effect of granting an enduring power of attorney must be explained to you by a lawyer, a qualified legal executive (with at least one year’s experience who is employed by and under the direct supervision of a lawyer), or an authorised person from a trustee company.
- The lawyer or legal executive must attach a certificate to the enduring power of attorney stating that they have explained it to you and must witness your signature as well. The must also certify that they have no reason to think you may already have lost mental capacity.
- You and your attorney must sign the enduring power of attorney.
- Your attorney’s signature must be witnessed by anyone other than you and your witness.
If you would like further information regarding Enduring Power of Attorney you can get further information from Age Concern New Zealand, Community Law, a Lawyer or download an information sheet from the Ministry of Justice website.
