Enduring Powers of Attorney (“EPAs”) are documents in which you appoint a trusted person to make important decisions on your behalf whilst you are alive, but mentally incapable. They give you peace of mind that your affairs will be looked after, if due to age, illness or injury you become too unwell to make decisions for yourself.

EPAs are valid only while you are alive and lapse on your death.  They are different to wills; wills only take effect on your death and deal with how your property is to be distributed after you have died.

However EPAs are just as important as wills. Without them, if you lose mental capacity, your family may find managing your affairs difficult, particularly if they cannot access your bank accounts to do such things as paying your bills. If you do not complete EPAs, it may be that the Family Court needs to become involved, to decide how to manage your property and personal matters.

EPAs are designed to protect you from financial abuse.  Because you can choose the attorney or attorneys yourself, you can appoint people who you trust to act honestly and in accordance with your wishes. That means your wishes are more likely to be followed, and all decisions should be made in your best interests.  In addition, the EPAs state that you must be consulted by the attorneys about all decisions they make on your behalf.

There are two types of EPAs:

Property
In your EPA for Property, you can appoint someone (or a specialist organisation such as the Public Trust) to take care of your finances and property, including paying your bills and managing your assets. It is particularly important to have an EPA for Property if you own a house or land with someone else.  You can appoint multiple people to act jointly if you wish, and can provide for back-up attorneys.  You can choose if your EPA for Property is effective as soon as it is signed, or if it is effective only when you have lost mental capacity.

Personal Care and Welfare
In your EPA for Personal Care and welfare, you can appoint someone to make decisions about your healthcare and wellbeing, such as where you live, how you will be cared for and what medical treatment you receive.  You can only appoint one person at a time to take on this role, and that person can only make decisions about your care and welfare once you have lost mental capacity.

Your EPA must be witnessed by a lawyer or registered legal executive who has advised you of its effect.

Attorney’s Powers and Responsibilities
It is up to you to decide how much power your attorney will have.  However, there are some things that an attorney can never do.  An attorney cannot:

• make decisions for you about getting married or divorced, or adopting out your children
• agree to you having electro-convulsive treatment (ECT) or brain surgery, or being part of medical experiments
• refuse to allow you to have standard medical treatment when it is necessary.

Attorneys have to act with transparency and fairness towards you, they must exercise reasonable care and skill, and avoid any conflict of interest with you. Your attorney must always promote and protect your welfare and best interests. Unless your EPA expressly permits it, your attorneys can’t use your money for their own benefit, and they must keep records of all financial transactions they enter into.  They must also consult with any other person you have named in the EPA, they must consult with you and encourage your self-reliance, and they must provide information to any person you have named in the EPA.

There are many things to think about when making Enduring Powers of Attorney.  At Core Legal Limited, we have the knowledge and experience necessary to help you through the process.  If you would like to discuss Enduring Powers of Attorney in more detail and find out what we can offer then please contact us and book a free 30 minute consultation or contact Kathryn Jorgensen at kathryn@corelegal.co.nz.

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