Enduring Power of Attorney

Many of us think about making plans in preparation for when we die. But what happens if you lose your ability to make your own decisions or to properly look after yourself?

Having an Enduring Power of Attorney (EPA) in place can ensure that somebody else will be able to step in and act on your behalf when it comes to your property and personal care and welfare.

What is an EPA?
An EPA gives the person you name as your attorney (such as a family member or friend) the ability to make decisions on your behalf. Your attorney must act in your best interests and involve you in the decision making as much as possible.

There are two kinds of EPA:
1. Property: The person (or people) you name in this EPA can help you manage your assets and finances. You can appoint more than one attorney, and you can choose whether they must act together or can act separately. You can also choose whether this EPA comes into effect now, or only if you no longer have mental capacity.
2. Personal Care and Welfare: You can appoint one person to make decisions in relation to your personal care, such as ensuring you have appropriate care and living arrangements in place. This EPA will only come into effect if a medical practitioner states that you no longer have mental capacity.

For both kinds of EPA, you can appoint successor attorneys to act if the first attorney(s) you have named are unable to. You can also require your attorney(s) to consult with or provide information to any other people named in your EPA.

The Family Court has oversight of matters relating to EPAs, and the ability to review any decision your attorney makes while acting under your EPA.

What if I don’t have an EPA?
If you lose your ability to make your own decisions, you may no longer be able to manage your affairs by yourself. For example, you may not be able to sell your house, manage your bank accounts or make important decisions concerning your health, living arrangements or related care decisions.

If this happens, it is too late to sign an EPA. It will then be up to somebody else, such as a relative, a social worker or a medical practitioner, to make an application to the Family Court for somebody to be appointed to make decisions for you (called welfare guardians and property managers). Unlike an attorney under an EPA, a welfare guardian or property manager is required to apply to the Family Court for a review of the order appointing them at least every 3 years.

Setting up an EPA can therefore save your family from the stress and cost of applying to the Family Court to ensure you are looked after.

How do I get an EPA?
Think carefully about who you might like to appoint as your attorney (or attorneys), and whether you would like anybody else to have oversight of your attorney’s decisions. It is important that you appoint somebody you trust to understand and respect your wishes, and make important decisions that will affect you.

You will then need to contact a lawyer or other authorised person to help you create your EPA. You can contact Holland Beckett Law for assistance at lawyers@hobec.co.nz or 07 578 2199.

Rebecca is a solicitor in Simon Collett’s commercial/property team.