There are a number of essential legal documents which everybody should have – Enduring Powers of Attorney rank highly on that list.
What are Enduring Powers of Attorney?
Enduring Powers of Attorney (“EPA”) are documents giving legal authority to someone (your attorney) to make decisions on your behalf. They allow your attorney to continue acting when you are no longer able to make or communicate decisions for yourself.
There are two types of EPA – Property and Personal Care and Welfare.
1. Property: Your property in terms of an EPA means anything you own, including land or buildings, money, investments, vehicles, machinery and household effects.
When making an EPA for Property you can restrict your attorney’s authority to specific items of property, or you can give your attorney general authority to deal with all of your property.
You must also choose when your attorney’s authority is activated. You can decide that your attorney only has authority to act if you are mentally incapable (in which case your attorney will need to obtain a medical certificate confirming your lack capacity prior to acting) or your attorney’s authority can come into effect immediately on signing the EPA. This can avoid the need for a medical certificate and can be convenient if you are overseas or temporarily unavailable to deal with any particular matter.
You can appoint multiple attorneys for your property EPA and can stipulate whether they must act together (jointly) or if they can act separately (severally).
2. Personal Care and Welfare: Your personal care and welfare attorney can make decisions regarding your care and welfare. For example, your attorney can decide where you will live and can make decisions to ensure you are being properly cared for.
An EPA for personal care and welfare will only come into effect if you become mentally incapable and are unable to make decisions regarding your care for yourself.
You can appoint one person to be your care and welfare attorney. You may appoint successor attorneys in the event that the appointment of your original attorney ends.
Why do I need Enduring Powers of Attorney?
Life can be uncertain and having EPAs in place can help ease the pressure on family members in the event of an unexpected illness or accident.
It is also generally a requirement of retirement villages and rest homes that their residents have EPAs.
If a person loses mental capacity, and does not have valid EPAs in place, often a family member needs to make an application to the Court for an order giving them authority to handle the person’s affairs. Ultimately, this is a time consuming and expensive process.
Who should I appoint as my attorney?
Your attorney should be someone you trust to understand and respect your wishes.
You can place an obligation on your attorney to consult with certain people and also to provide information to certain people regarding decisions they have made while acting as your attorney.
Your attorney has a duty to act in a manner which promotes your best interests at all times. They also have an obligation to use your property to promote and protect your best interests and, unless otherwise expressly stated, cannot use your property for the benefit of any other person, including themselves.
When does an EPA cease?
You may cancel or revoke your EPA at any time while you are still mentally competent. This can be done by issuing written notice of cancellation to your attorney.
An EPA will also cease once the donor (person who made the EPA) has died.
General Powers of Attorney
A general Power of Attorney can be put in place and be useful for periods of temporary absence overseas, or to allow someone to carry out a particular transaction on your behalf.
The powers provided for under a general Power of Attorney are not effective long term or in the event of the donor losing capacity, unlike an EPA which will continue, even in the event of loss of capacity, until such time as the donor revokes it.
How do I make an EPA?
Horsley Christie has an experienced and professional team of solicitors and legal executives who can discuss all of your options and assist you to put EPAs in place.
Please contact us if you wish to arrange an appointment. Phone: 06 349 0090. Email: ambero@horsleychristie.co.nz
Amber Olsen
REGISTERED LEGAL EXECUTIVE
Disclaimer: This publication should not be construed or acted on as legal advice. It is brief and general in nature. Specific advice should be sought.
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