Enduring Powers of Attoney

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An Enduring Power of Attorney is a legal document in which you can give somebody power to make decisions about certain areas of your life when you can’t make those decisions for yourself. 

These legal documents are sometimes referred to as ‘EPA’s’ or ‘EPOAs’. The name is a lot of legalese gibberish to a normal New Zealander so let’s break it down:

Enduring = this word is used because the document still has legal effect even after you no longer have mental capacity to make your own decisions.

Attorney = not your Lawyer, but the person you are trusting with these powers.

There are two different kinds of EPOA’s: one in relation to Property and one in relation to Personal Care and Welfare. Most people have both kinds of EPOA’s done at the same time.  They are very similar in form, so I will be discussing them together and point out the differences between the two.

When will an EPOA kick in?

You have a choice about when an EPOA kicks in. Either:

  1. When you become mentally incapable; or
  2. Before you become mentally incapable.

Nine times out of ten people choose the first option. The powers are extensive and there is usually no reason to give up that kind of decision making over your life unless you are not capable of making decisions.

A medical professional – usually your GP – must be the one to determine that you are mentally incapable. It is not a permanent diagnosis. If your situation improves and you become able to make decisions again, then the EPOA cannot be used. Let’s look at an example.

Sandra was in a car accident and fell into a coma. Her EPOA was enacted so her Attorney could make decisions for her while she was mentally incapable. After 30 days, Sandra woke up and a doctor judged her mentally fit, so her Attorney ceased to be able to use those powers.

What Powers does an EPOA grant?

You can choose the level of power that the EPOA grants.

A full grant would cover all decisions in relation to your Property and/or your Personal Care and Welfare.

There are some caveats to this:

For Personal Care and Welfare, your Attorney cannot consent to the following:

  • Experimental Treatment
  • Electro-convulsive Treatment (ECT)
  • Refusal of any medical treatment that might save your life or prevent serious damage to your health

In general, your Attorney cannot:

  • Get you married or enter you into a civil union
  • Dissolve your marriage or your civil union
  • Make any decisions about the adoption of any of your children

Your Attorney must at all times be promoting and protecting your welfare and best interests. They must encourage you to develop your own competence to act on your own behalf as much as you possibly can, and to be part of the community. They must consider the financial effects of any decisions.

You can choose whether or not the Attorney could benefit themselves by letting them recoup out of pocket expenses.

You can also restrict the powers your Attorney can exercise under their EPOA. Let’s take another look at our example.

Sandra, our coma patient, had a Property EPOA. It granted her sister Marie the power to act for Sandra if she was mentally incapable, but Sandra restricted that power to only paying outgoing bills on her apartment in Wellington. While in a coma, the rates became due, but it was okay because Marie had the power to act to pay this bill on Sandra’s behalf, using Sandra’s money.

What checks are there on my Attorney?

There are a number of ways that the Attorney’s powers and actions can be moderated.

You can name people in your EPOA that must be either consulted, informed, or both. Consultation occurs before a decision is made, whereas usually one is informed of a decision after it has been made. People often name their children or siblings as people they would like to be consulted and/or informed. If you name people to consult with, your Attorney is entitled to follow advice received from consultation if they act in good faith and with reasonable care. Your attorney can also apply to the Family Court for directions on how to act (for example, if they receive conflicting advice from consultation).

Your Attorney will likely be working closely with medical professionals who have dealt with Power of Attorney before. They will be on hand to advise what is in your best interests.

What if I don’t agree with a decision they made?

As long as your Attorney can prove that in their judgement they were acting in your best interests, then they are legally protected for any decisions they make. They also cannot exceed any powers that your EPOA sets them.

Certain people can apply to the court to have your attorney’s actions challenged. These people include you, any relative of yours, medical practitioners, the manager of any hospital, rest home, or residential care facility you are receiving care in, a person from a government-funded abuse and neglect prevention service, or a social worker. The court will make an order as they see fit. Let’s look at our example again.

Sandra woke up and was deemed mentally capable by her doctor. Sandra was devastated that her beautiful rental property in Palmerston North has been sold. She talked to a Lawyer about what claim she might have against her Attorney, Marie. The Lawyer advised that if Marie believed it was in the best interest of Sandra, did not exceed the powers given to her, and that it was a reasonable decision in light of the situation at the time, there is nothing Sandra can do. Sandra cannot revoke a decision made by her Attorney while her Attorney was exercising their powers legitimately. Sandra could go to Court, but after looking at her finances she determined that the Court would no doubt find that Marie made a good decision.

Why would I want to have an EPOA?

The above examples should not scare you off having an EPOA, but you do need to seriously consider the worst-case scenario. Your Attorney should be someone you trust, and you should have conversations about what you would want to happen to your Property and/or Personal Care and Welfare well before it is ever needed.

The consequences of not having an EPOA can be equally as bad. There may come a time where you need to have serious decisions made about your property and or your health and you need to be able to make them. If you do not have capacity to make these decisions, your loved ones may have to go through an expensive and lengthy process to apply to the Courts to give them that authority. Having an EPOA gives your loved ones some surety and some power to actively protect your interests when you are unable to care for yourself.

Like writing a Will, thinking about Enduring Power of Attorney won’t be the most fun you’ll ever have. But it is an important legal tool to protect you, your property and your health.

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