Life can be fragile and you never know when the ability to make your own decisions can be affected by sickness or injury. An Enduring Power of Attorney is a formal document that outlines who you would like to 'talk' for you and make decisions on your behalf if are too unwell to do this.
An Enduring Power of Attorney can help protect your future
Having an Enduring Power of Attorney (EPA) means you can have peace of mind that you have decided, ahead of time, who you trust to make decisions for you if you can’t decide for yourself.
It’s important for every adult, whatever their age, to take steps to create an EPA.
What is an Enduring Power of Attorney?
An Enduring Power of Attorney (EPA) is a legal document that can protect you and what is precious to you.
There are two types of EPAs:
- Property – covers your money and assets and can come into effect before you lose mental capacity. You may have more than one attorney for this EPA.
- 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 decides you have become ‘mentally incapable’. You may have only one attorney for this EPA.
An EPA means only the people you trust – your ‘attorney/s’ – can make decisions about your life and/or your treasured possessions, such as your house, money and belongings. You are referred to as the ‘donor’.
An EPA can protect you from financial abuse because you have chosen that person or people yourself. That means your wishes are more likely to be respected, and that decisions should be made in your best interest.
An EPA can also save your family the cost and stress of having to get a court order to make decisions about you and your property and finances should something happen to you.
What does an attorney do?
Once an EPA comes into effect – either at your request (for a property EPA) or when a medical professional considers you mentally incapable (for a property or a personal care and welfare EPA) – your attorney (or attorneys) can make most decisions about your care and welfare, your property and finances.
You decide if that power applies to everything or only to parts of your care. There are some areas – such as 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, applications for help can be made to the Family Court.
Who can be an attorney?
Your attorney can be anyone you trust to understand and respect your wishes and feelings. Usually they are a friend or family member, a colleague, or even a trustee corporation like the Public Trust (for property EPAs only).
They must, however, be over 20 years of age, not bankrupt and not mentally incapable themselves.
You may choose the same person for both EPAs. While you may have only one attorney for your personal care and welfare EPA, you may have more than one for your property EPA as you might want people with different skills to look after specific areas. You may also name other people you want your attorneys to consult with on EPA decisions.
Whoever your attorney/s are, it’s important you choose them carefully. Read about what it means to become an attorney Super Seniors, NZ.
Can I change my EPA?
You can change or end your EPA at any time you are mentally capable. If you or your family have concerns about an attorney’s behaviour, applications for help can be made to the Family Court for help.
An attorney loses their power if they become bankrupt, mentally incapable, subject to a personal or property court order, or the Family Court revokes their appointment. An EPA stops if you, or they, die. You may name other attorneys to take over if your attorney dies.
Your attorney can also opt-out of their role by giving notice in writing if you are still mentally capable, or go to the Family Court if you are no longer mentally capable.
How do I get an EPA?
When you’ve decided who you’d like as your attorney and what you want them to do, you need to arrange a lawyer, a qualified legal executive or a representative of a trustee corporation (like Public Trust) to be your witness. They will make sure you understand all your options, what the EPA document means, and that it meets all legal requirements.
Creating an EPA does cost money but there are ways to bring down the cost. Being organised, knowing what you want and filling out the forms on this page before seeing your witness will mean the process takes less time and can, therefore, be cheaper.
Some lawyers and other legal professionals offer a SuperGold Card discount so make sure you ask. They may also let you pay the cost off over time. Making an EPA when you make your Will or need to see your lawyer about another matter can also help you save on costs.
What should I prepare when setting up an EPA?
There are standard forms you must fill out to set up an EPA. You can download them from the Super Seniors website (Ministry of Social Development).
Before you see your legal advisor, think about:
- Who you want your attorney/s to be and what you do and don’t want them to do on your behalf.
- How your attorney/s might be supported – could you name other people, such as family/whānau, friends, an accountant or solicitor, to be consulted or provide your attorney with advice?
- Making a list of the main things you own, any money owed to you, and any debts.
- Who else could you give a copy of the EPA to – your doctor, your bank, family members?
- When you want your property EPA to come into effect – a date, a period in time, or when you are determined ‘mentally incapable’.
- How your attorney/s might be monitored, such as 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 EPA, which may help with monitoring.
- Whether you want to appoint other people to step in as attorneys if something happens to your first choice.
Do you have any questions? Visit the Super Seniors website for Frequently Asked Questions about EPAs
EPA step-by-step videos
This is a great series of short videos about Enduring Power of Attorney. Click on the links below and you will be linked to the Super Seniors website to view (scroll down the page to see the videos).
- Can a younger person get an Enduring Power of Attorney?
- Who can you name as your attorney?
- Can I make changes to my Enduring Power of Attorney if I change my mind down the track?
- Can I instruct my attorney to consult with other people?
- If I don't have an Enduring Power of Attorney what happens if my property or care and welfare needs looking after?
- What are the main barriers to people getting an Enduring Power of Attorney?
- What triggers an Enduring Power of Attorney to come into effect?
- What happens to my Enduring Power of Attorney if I move to another country?
- How do I get an Enduring Power of Attorney?
Enduring power of attorney – protect your future Super Seniors, Ministry of Social Development, NZ