Enduring Power of Attorney

An EPOA can help protect your future. Having an EPOA means you can have peace of mind that you have decided, ahead of time, who you trust to make decisions on your behalf. 

It’s important for every adult, whatever their age, to take steps to create an EPOA. 

If you lost your cognitive capacity to make decisions and you didn't have an EPOA in place, then your whānau or loved ones would need to apply to the Family Court in order to be able to act on your behalf as a property manager/welfare guardian. That process could be very costly and the orders that the Court make would expire after a few years and would need to be renewed from time to time – requiring further applications to be made to the Court. 

An EPOA can save your family the cost and stress of having to get a Court order to make decisions about you, your property and your finances, should you lack the capacity to make those decisions yourself.

It's crucial that the people you choose to be your attorney(s) can be trusted to act in your best interests at all times and are willing and able to fill that role. 

It's important to note that most retirement villages require prospective residents to have EPOAs in place in order for them to be approved as a resident. 

 

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An EPOA is a legal document that can protect you and what is precious to you. 

An EPOA means only the people you trust – your attorney(s) – can make decisions about your life, eg, consent to your medication/medical procedures, determine where you can live, and whether you can travel (in the case of an EPOA for personal care and welfare), or your house, money and belongings (in the case of a EPOA for property). You are referred to as the ‘donor’. 

There are 2 types of EPOAs: 

1. Personal care and welfare – covers your health, accommodation and associated care decisions, and comes into effect only if a medical professional or the Family Court(external link) decides you have become ‘mentally incapable’. You can only have 1 attorney at a time for this type of EPOA. 
2. Property – covers decisions relating to your financial assets, eg, paying bills, taking care of bank accounts. This can come into effect before you lose mental capacity. Another example is if you want to move into assisted living or rest home care and would like a loved one to sell your house for you.  
   You can choose 1 or more people to act as your attorney for this type of EPOA. 

Your EPOA will come into effect either at your request (for a property EPOA), or when a medical professional considers you are mentally incapable (for a property, or a personal care and welfare EPOA). Once an EPOA comes into effect your attorney(s) can make most decisions about your care and welfare and/or your property and finances. 

You (as the donor) decide if that power applies to everything or only to parts of your care or property. There are some areas (eg, marriage, divorce, adoption or refusing life-saving medical treatment) where an attorney has no power to decide. 

Your attorney’s (or attorneys’) main responsibility is to act in your best interests, and they must involve you in decisions as much as you are able. If you or your family have concerns about their behaviour, then an application can be made to the Family Court.

People usually choose a trusted family member or close friend to be their attorney. It should be someone you know well and are confident will represent your wishes and feelings. 

They must: 

• be over 20 years of age
• not be bankrupt or mentally incapable themselves 
• be willing to take on the responsibility. 

You can also choose a trustee corporation like the Public Trust to be your attorney (for property EPOAs only). If you do this, you should ask about what their costs will be.  

You can choose the same person for both EPOAs. While you might have only 1 attorney for your personal care and welfare EPOA, you might have more than 1 for your property EPOA as you might want people with different skills to look after specific areas. You can also name other people you want your attorneys to consult with or provide information to in regard to their decisions. 

Whoever your attorney/s are, it’s important you choose them carefully. Read more about what it means to become an attorney.(external link)

You can change or end your EPOAs at any time as long as you have mental capacity. An attorney can opt out of their role, or you can remove them by giving them written notice.

An attorney loses their power if:

• they become bankrupt
• they become mentally incapable
• they are subject to a personal or property court order
• the Family Court revokes their appointment.  

An EPOA stops if you, or they, die. You may name other attorneys to take over if your attorney dies (as your successor attorney(s)). 

Your attorney can also opt out of their role by giving notice in writing if you are still mentally capable, or by going to the Family Court if you are no longer mentally capable. 

There are standard forms to fill out to set up an EPOA.

• Personal Care and Welfare form(external link) (.docx)
• Personal Care and Welfare form(external link) (.pdf)
• Property form(external link) (.docx)
• Property form(external link) (.pdf)

There are also documents explaining EPOAs and how they work in relation to personal care and welfare, and property, 

• Standard explanation of effects and implications of enduring power of attorney in relation to personal care and welfare(external link)
• Standard explanation of effects and implications of an enduring power of attorney in relation to property(external link)

When you’ve decided who you’d like as your attorney(s) and what you want them to do, you need to arrange somebody to be your witness. This could be a lawyer, a qualified legal executive or a representative of a trustee corporation (eg, Public Trust).  

Your witness will make sure you understand all your options, what the EPOA document means, and that you’re not being pressured into having an EPOA. They will also check that it meets all legal requirements. You will have to sign the EPOA documents in front of them. 

It's recommended that you approach a lawyer to prepare your EPOA. Creating one or more EPOAs does cost money if you engage a lawyer to prepare them, but there are ways that you may be able to keep the cost down.

You can keep costs down by:

• being organised
• knowing what you want
• filling out the forms (see the section above) before seeing your lawyer.

This means the process takes less time and may therefore be cheaper (particularly if the lawyer doesn't have a fixed fee). 

Some lawyers and other legal professionals offer a SuperGold card(external link) discount so make sure you ask. They might also let you pay the cost off over time. Setting up an EPOA when you make your Will or need to see your lawyer about something else might also help you save on costs. 

Before you see your legal advisor, think about these things: 

1. Who you want your attorney/s to be and what you do/don’t want them to do on your behalf. 
2. How your attorney/s might be supported to make decisions – you might name other people, such as family/whānau, friends, an accountant or solicitor, to be consulted or provide your attorney with advice. 
3.  Writing a list of the main things you own, any money owed to you, and any debts. 
4. Who else could you give a copy of the EPOA to – your doctor, your bank, family members. 
5. When you want your property EPOA to come into effect – a date, a period in time, or when you are determined ‘mentally incapable’. 
6. How your attorney(s) might be monitored (eg, by appointing a second person to oversee your financial records, get copies of bank statements, or be informed of certain decisions). Remember, you can also appoint a second attorney for your property EPOA, which may help with monitoring. 
7. Whether you want to appoint other people to step in as attorneys if something happens to your first choice. 

Age Concern has a list of questions(external link) to ask yourself before you see your legal advisor and appoint an attorney. See ‘Ask yourself these questions’. 

The Citizens Advice Bureau also has a list of questions to think about(external link) when setting up an Enduring Power of Attorney.