Creating an Enduring Power of Attorney

Please note, the language in this guide has been simplified to facilitate understanding of Enduring Powers of Attorney. Where any language appears to conflict with that contained in the relevant legislation (generally, the Protection of Personal and Property Rights Act 1988) the relevant legislation should be referred to instead.

An enduring power of attorney (EPA) gives peace of mind for the future – you’ve decided ahead of time who you trust to make decisions for you if you can’t decide for yourself.

Why you need an EPA

If something happens to you and you do not have an EPA, your family – including your spouse or partner – would have to apply to the Family Court to be able to act on your behalf. This process can be stressful and expensive for your loved ones.

Having an EPA can protect you from abuse and means your wishes are more likely to be respected because you have chosen people you trust in advance who will make decisions in your best interest.

A good time to organise your EPA is when you’re making your will, but everyone – whatever their age – should think about getting an EPA.

Key terms

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.

“Capacity to make decisions” means you are mentally competent to make decisions.

A “health practitioner” means someone who is qualified to assess mental capacity (your capacity to make decisions), for example a GP, a doctor specialising in the care of older people, or a mental health nurse.

If you have more than one attorney (for your property EPA), you can choose whether they act “jointly” or “severally”.

“Jointly appointed” attorney’s make decisions together. If one attorney is unable to act for any reason, the other attorney cannot make decisions alone.

“Severally appointed” attorneys can make decisions separately.

What an EPA covers

There are two types of EPAs – property EPAs and personal care and welfare EPAs.

Property EPA

A property attorney can make decisions relating to financial assets, for example:

  • arranging benefits
  • paying bills
  • buying and selling assets
  • taking care of bank accounts.

A property EPA can come into effect before you lose the ability to make decisions for yourself, for example, if you are moving into assisted living and would like a loved one to manage selling your house on your behalf.

You can choose more than one attorney for this EPA.

Personal care and welfare EPA

A personal care and welfare attorney can make decisions relating to health and wellbeing, for example, your:

  • medical treatment
  • health and welfare
  • living situation.

You can have only one attorney for this EPA.

Choosing your attorneys

People often choose a family member or close friend as an attorney, but ideally it should be someone who:

  • knows you well
  • you trust to make decisions for you
  • is willing and able to take on the responsibility of being an attorney.

Your attorney must also:

  • be at least 20 years old
  • not be bankrupt
  • not be subject to any personal order or property order (an order from a Family Court judge about a person’s personal care and welfare or about their money and property, in situations where the person is unable to make decisions for themselves).

You can also choose a trustee corporation (such as Public Trust) to be an attorney for your property EPA (but not for your personal care and welfare EPA).

You can:

  • choose different attorneys for the two different types of EPA
  • choose special terms and conditions for your attorneys, for example what they can and can’t decide. There are some areas – such as marriage, divorce, adoption or refusing life-saving medical treatment – where an attorney has no power to decide
  • select another person for the attorney to consult with or report to
  • name people who the attorney must supply with relevant information if they ask for it.

It’s a good idea to talk to your attorneys about what you might want in various situations, so they know your wishes in advance.

Your personal care and welfare attorney’s most important concern is to promote and protect your welfare and best interests. Your property attorney must use your property to promote and protect your best interests.

Your attorneys must also, as much as they can, consult with you and anyone else you have named in the EPA. Your property attorney must also keep records of any financial transactions.

Your attorney must not make decisions for the benefit of themselves or anyone other than you, except in some limited circumstances.

Easy to print information

To help you, the following document designed to be easily printed at home, or at your local library have been produced .

Enduring Power of Attorney

Enduring Power of Attorney - becoming an attorney what you need to know

Setting up your EPA

Complete the forms

There are standard forms you must fill out to set up an EPA.

Arrange a witness

Once you’ve completed your forms, you will 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
  • you understand what the EPA document means
  • your documents meet all the legal requirements.

Fees

You will have to pay your witness for their time. You can save money by:

  • being organised
  • knowing what you want
  • completing the forms in advance of your appointment.

Some lawyers and other legal professionals offer a SuperGold discount. They may also let you pay the cost off over time.

SuperGold

Making an EPA when you make your Will or need to see your lawyer about another matter can also help you save on costs.

EPA set-up checklist

Before you talk to your legal adviser:

  • decide who you want your attorneys to be and what you do and don’t want them to do on your behalf
  • think about how your attorneys might be supported – for example, by naming whānau, friends, or an accountant or solicitor who must be consulted or provide your attorney with advice
  • make a list of the main things you own, any money owed to you, and any debts
  • think about who you want to give a copy of the EPA to – for example your doctor, your bank, or family members
  • decide when you want your property EPA to come into effect – this can be a date, after a period in time, or when you are determined mentally incapable
  • think about how your attorneys might be monitored, for example by appointing a second person to oversee your financial records, get copies of bank statements, or be informed of certain decisions
  • decide whether you want to appoint other people to step in as attorneys if something happens to your first choice
  • download and complete the forms.

 

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