Enduring Power of Attorney
Setting up an enduring power of attorney (EPA) used be a daunting task, but there are now much better protections in place for you, making an EPA something that all adults should consider.
We’ve all heard the occasional horror story about older people who’ve had a bad experience with an EPA, whether it’s a family member, a friend or, in some cases, a professional who assumes the ‘duties’.
While you expect your attorney will look after you if you need them to, the risks that they might ‘rip you off’ or do a bad job have kept some people from signing an EPA.
After concerns some attorneys were misusing their powers and not acting in their donor's (the person who appoints them) interests, amendments were made to the Protection of Personal and Property Rights Act in 2008. These provide much better protection for any adult who wants to put an EPA in place.
Two types of EPA
There are two different types: one for personal care and welfare, and one for property.
An EPA for personal care and welfare concerns decisions about your care, such as how you should be looked after if you became unable to do this yourself. This type of EPA only takes effect if you become mentally incapable.
An EPA for property is about how you would like your property and finances managed. With an EPA for property you can choose whether it comes into effect straight away, or only when you can no longer manage your affairs
While the same person can be both your Property and your Personal Care and Welfare attorneys, it’s often a good idea to appoint separate individuals as different skills are needed. The two attorneys will often need to work together when making decisions on your behalf, so select people to be your attorneys who you are confident will work well together.
Choosing your attorney
The most important thing is to choose a person or people you can trust. For a personal care and welfare EPA that could be a family member, friend, or anyone who you believe has your best interests at heart. It can only be one person and it cannot be a trustee company. For a property EPA you can choose one or more individuals, or a trustee corporation such as Public Trust.
Other people, including family members or even your GP, can now be involved in ensuring that your best interests are taken into account, even if they are not named as an attorney.
This means that, if you write it into your EPA, your attorney would need to consult or supply information to those that you have named. This is an added protection for you.
Attorneys are restricted from acting to the benefit of themselves or someone else while they're managing your affairs.
Handing over to the attorney
The question of whether you are still mentally capable must be decided by a health practitioner who is qualified to carry out this assessment.
You’ve become 'mentally incapable' if:
in respect of property you are no longer completely competent to manage your own affairs
in respect of personal care and welfare you can no longer make or understand decisions, or foresee their consequences, or you cannot communicate your decisions to other people.
Without a certificate from your health professional an attorney cannot make any significant decisions about your personal care and welfare. See our article on capability issues for more information.
At any time while you are mentally capable you can replace, revoke or vary your EPA, although it is best to seek legal advice before making any changes.
If you have an existing EPA that has not yet come into effect, it is still valid. Aside from the witnessing provisions, all of the 2008 law changes apply. You may want to revise your EPA to include clearer instructions on how you want your property, personal care and welfare to be managed.
Remember, attorneys must act in the donor’s best interest, consult with them as much as they can and encourage them to develop their own competence. At the end of the day, your property, health and welfare are important, regardless of your age or ability.
> Forms EPA forms and guidelines are available on the Office for Senior Citizens website. These are for your information only as you will need professional assistance to complete these. The Public Trust also has information and forms.
Local Age Concern offices have free information resources
What happens if you can no longer make decisions? Why you need an enduring power of attorney.
DOWNLOAD our EPA pamphlet [PDF file 0.2MB]
DOWNLOAD our EPA pamphlet with a summary in Te Reo Maori [PDF file 0.28MB]
DOWNLOAD our Hindi language version [PDF file 3MB]
Planning your Future and the Role of Enduring Powers of Attorney – a 44-page booklet covering the revised EPAs and what happens if you don't have an EPA when you need one.
- Out of stock at many Age Concerns, please download a copy here >Attachment [PDF file 0.04MB]