Changing or ending an EPA
If you are mentally capable, you can can change or end your EPA at any time.
The “donor” is the person who is making the EPA.
An “attorney” is the person appointed in the EPA to make decisions for the donor if they can’t decide for themselves. This person does not have to be a lawyer.
Creating an enduring power of attorney (EPA)
A person becomes “mentally incapable” when a medical professional or the Family Court judges that they lack the capacity to make certain decisions or manage their affairs.
Changing or removing an attorney
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.
They can also opt out of their role or you can remove them.
If the attorney chooses to opt out
They must give you notice in writing if you are still mentally capable, or go to the Family Court if you are no longer mentally capable.
If you choose to remove an attorney or cancel your EPA
While you are mentally capable, you can cancel your EPA or remove an attorney at any time by giving written notice to the attorney. You should also give notice to any successor attorneys.
If you have joint attorneys (and you have not elected for them to act "jointly and severally" – meaning they can make decisions together or separately) you will not continue to have a valid EPA unless you have chosen a successor attorney who can act.
You must notify the attorney of your decision so that your decision becomes "active". If you do not give them notice, they can continue to act and their decisions will be valid.
When an EPA ends
An EPA continues until:
- you, your attorney (or a joint attorney) dies
- your attorney (or a joint attorney) becomes bankrupt, mentally incapable or otherwise incapable of acting as an attorney
- you take away the power of the attorney by giving them notice in writing
- the attorney gives notice in writing to either the donor (if still mentally capable) or the court (if the donor is no longer mentally capable) that they no longer wish to act as attorney
- the court takes away the attorney’s power because they are not acting in your best interests, used undue influence or acted fraudulently to get the EPA, or is not suitable to be your attorney
- you recover mentally and suspend the EPA by writing to the attorney – in this case, the EPA would come back into effect if you were declared mentally incapable in the future.
If your EPA provides for successive attorneys to take over in the event that a previous attorney’s power ceases for some reason, then the EPA will only end when any of the above applies to the last attorney.
Help from the Family Court
The Family Court can be asked to make decisions about:
- disputes about an EPA or its effect
- how an attorney has been carrying out their role.
A wide variety of people can ask the Family Court to intervene if they have concerns, including:
- relatives
- a doctor or social worker
- another attorney if there is more than one, or
- anyone else who gets the Court’s permission to apply.
The Family Court and enduring power of attorney – Ministry of Justice