Creating an Enduring Power of Attorney

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.

How it works

An enduring power of attorney, also known as an EPA, is a legal document that gives someone else the authority to make decisions for you if you are no longer able to make decisions for yourself.

If you have an EPA, someone you trust – called your “attorney” – will legally be able to make decisions about your finances, your property, and your care and welfare if you are not able to.

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.

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 go to court to be able to act on your behalf. This process can be stressful and expensive for your loved ones.

Having an EPA protects you from financial 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.

What an EPA covers

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

Property EPAs

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 mental capacity, 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

A personal care and welfare attorney makes decisions about care, health and living arrangements, for example:

  • healthcare
  • accommodation
  • associated care decisions

A personal care and welfare EPA only comes into effect if a medical professional or the Family Court decides you have become “mentally incapable”.

You may have only one attorney for this EPA.

Family Court

Choosing your attorneys

People often choose a family member or close friend as an attorney, but you can choose anyone who:

  • knows you well
  • you trust to make decisions for you
  • is willing and able to take on the responsibility of being an attorney
  • is over 20 years old
  • is not bankrupt or subject to any personal or property court order.

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

You can:

  • choose different attorneys for the two different types of EPA
  • have more than one property attorney (there can be only one personal care and welfare attorney)
  • 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 someone else 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.

Legally, your attorneys are required to:

  • always act in your best interests
  • consult with anyone else you have named in the EPA, and with you when possible
  • keep records of any financial transactions.

They must not make decisions that benefit themselves or anyone other than you, except in some limited circumstances.

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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