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Enduring Powers of Attorney

8 October 2018

So - what is an Enduring Power of Attorney (EPA)?

An EPA is formal document in which you, the donor, can appoint one or more persons to act on your behalf as your attorney. There are two types of attorneys you can appoint (a) one attorney as to personal care and welfare, and (b) one or more attorneys as to property.

Personal Care and Welfare

This involves the big decisions relating to you personally, including what medical treatment you receive and where you live. This EPA will not come into effect until you are judged (by a medical practitioner) as being not able to make decisions relating to your personal care and welfare yourself.

Property.

Property is not just limited to any land that you may own, but also relates to bank accounts, dealing with the IRD, WINZ and any other debtors or creditors that you have. You can appoint more than one attorney to act on your behalf in relation to your property. This EPA document can come into force immediately so your attorney(s) can act for you (on your instructions), in relation to your property. This is great if you are going overseas for a specific period of time, or if you are getting to a stage in life where you just don’t want to have to deal personally with such matters. You can also choose to have this power came into effect only if you are judged as not being able to make these decisions yourself.

Why get one?

Without an EPA, no one else can deal with your property, your financial affairs or make decisions relating to your medical care or where you will live, on your behalf. Your family and even your husband, wife or partner may need to go to court to get this power.

Although powers of attorney are most commonly made to prepare for a case of mental incapacity, they are also useful for those going overseas. Your power of attorney document will allow your attorney(s) to act on your behalf in New Zealand, therefore avoiding the delay and cost of having to send documents overseas for signing.

Do I need a lawyer to get an EPA?

In September 2008 legislative changes were made to the Protection of Personal and Property Rights Act 1988. These changes now mean you may have to seek independent legal advice before making an EPA and there are new witnessing requirements to say that you (the Donor) have to have your signature witnessed by a lawyer, legal executive or trustee corporation employee. (Note: the person or people you appoint as your attorneys will also have to sign the documents, and they cannot have the same witness as you).

An EPA is completed in a specific form. Usually it tends towards giving a general power to your attorney(s). However as the donor you do have the ability to limit your attorney(s) power to certain circumstances, or certain property. This advice is specific to every person and a Legal Professional will need to advise you on that.

Can I change my mind about my Attorneys?

You can revoke Enduring Powers of Attorney at any time while you are mentally capable.

Who should I appoint?

Your attorney has a legal duty to act on your behalf in good faith and for your benefit. You should choose somebody you trust to do this. You may wish to appoint a member of your family as your attorney. The main test is the person you appoint should be over 20 years of age, be mentally capable, and not be bankrupt.

Most importantly, in order to create a valid power of attorney, you need to understand the nature and effect of what you are doing. You therefore need to put a power of attorney in place before you need it.

Time and again we deal with families frustrated at the requirements of Banks and Government Agencies etc for loved ones, when a simple EPA would have avoided all the stress and hassle.