As our loved ones age, we may encounter situations where their mental capacity begins to decline. This can be a challenging and emotional time, but it’s important to understand the legal options available in New Zealand to help them effectively. In this article, we will explore the legal steps you can take when assisting a family member who is losing capacity, focusing on Enduring Powers of Attorney and the appointment of Welfare Guardians and Property Managers.

Recognizing the Signs

Martha’s concern for her mother May grew as she noticed May becoming forgetful and struggling with everyday tasks. May no longer called people by name and had difficulty managing her finances and personal affairs. Worried that her mother might have dementia, Martha sought ways to assist her mother with daily activities like shopping and bill payments. Her friend, who had faced a similar situation with her father, advised her to consider becoming her mother’s attorney through Enduring Powers of Attorney.

Enduring Powers of Attorney

Enduring Powers of Attorney (EPAs) are legal documents that grant someone the authority to make decisions on behalf of another individual should they lose capacity. To establish EPAs, there are crucial steps to follow:

1. Consult with a Lawyer: Seek legal counsel from an experienced attorney who can guide you through the process and ensure compliance with New Zealand’s legal requirements.
2. Assess Capacity: If there are concerns about the person’s capacity, it’s essential to obtain a medical certificate from a qualified health practitioner authorized to assess mental capacity.
3. Document Creation: If the health practitioner certifies capacity, a lawyer can assist in drafting and signing the EPAs. There are two types: one for personal care and welfare and another for property matters.
4. Activation: The EPA for personal care and welfare only takes effect when the individual loses capacity. However, the individual can choose whether the EPA for property matters activates immediately or only upon loss of capacity.
5. Periodic Assessment: Before the appointed attorney can make decisions or take action under the EPA, another capacity assessment by a health practitioner is necessary.

Lack of Capacity

If a health practitioner determines that the individual lacks capacity, it becomes necessary to apply to the Family Court for the appointment of a Welfare Guardian and Property Manager.

Property Manager:

• More than one person can be appointed as a Property Manager, unless the Court decides otherwise.
• The Property Manager must be at least 20 years old and capable of fulfilling the role.
• Specialist lawyers will inform the Court on the application’s purpose and necessity.
• Property Orders will be reviewed every three years.
• For significant transactions, a separate application to the Court is usually required.

Welfare Guardian:

• A Welfare Guardian must also be at least 20 years old and capable of fulfilling the role.
• The Welfare Guardian makes decisions about the person’s care and living arrangements.
• The Court strives to consider the individual’s preferences when appointing a Welfare Guardian.

Seeking Legal Advice

Navigating these legal processes can be complex and burdensome for family members trying to help a loved one losing capacity. Seeking early legal advice from a legal practitioner is highly recommended. They can provide guidance on the best course of action and ensure that the necessary legal steps are followed to protect your loved one’s interests.

When a family member is losing capacity, understanding the legal options available in New Zealand is essential. Enduring Powers of Attorney, Welfare Guardians, and Property Managers are legal mechanisms that can provide support and ensure the well-being of your loved one. Consulting with a legal professional early in the process can help you make informed decisions and navigate the legal requirements effectively.

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