Enduring powers of attorney explained: choose someone you trust to make decisions if you can’t

The two types of enduring powers of attorney

There are two types of EPA in Aotearoa, each of which covers different things. Most people need both.  

The rights of each type of EPA can be given to the same person or different people, but even if they’re given to the same person, each EPA has to be granted specifically and separately. That creates the opportunity for you to be clear about where the rights can be applied.  

If you’re appointing two or more people, you’ll need to decide whether they’ll act ‘jointly’ (need to agree on every decision) or ‘severally’ (be able to act independently). Severally is often more practical. 

Our attorneys have to consult us as much as they can when making decisions for us.

For both property and personal care and welfare, a ‘successor attorney’ can be appointed – aka someone who will become our attorney if the first person can’t, for example if they’re incapacitated or they’ve died.  

You can also appoint what’s called an ordinary or general power of attorney (as opposed to enduring) for short-term, temporary or specific purposes. This one-minute video explains the difference and when it can come in handy. 

When should you set up EPAs?

Um... now?! If that’s not on the cards for you, if you can tick any of these boxes relating to moments when having EPAs in place becomes especially important: 

• You’re about to travel overseas (so someone can manage things in Aotearoa if something happens while you’re away) 
• You’ve received a new health diagnosis that might affect you mentally over time 
• You’ve started a new relationship or got married  
• You’re getting older (the earlier it’s set up, the easier it is for everyone and the less likely it is to be challenged) 
• You’re making or updating your will (they’re complementary documents, so combining them into a single session is standard practice). 

How much do EPAs cost? 

Setting them up usually costs $200 to $500 per EPA, depending on whom you use and how complex your situation is. If you think about it, though, if you lose capacity without EPAs, you may end up in not a great position, and your loved ones may need to spend heaps applying to the Family Court.  

In the scheme of things, saving up or setting money aside to get your EPAs in place is a bit of a no-brainer for the sake of ‘future you’. 

Some legal professionals let you pay off the cost over time, and there are ways to reduce it. 

• Rather than pay a lawyer or legal executive to complete the process start to finish, download the official forms free from the Office for Seniors, Ministry of Justice or other trusted source, then just pay a professional to witness them. 
• Combine sorted your EPAs with preparing your will – lawyers may offer a discount for doing both.  
• Ask about a SuperGold Card discount for seniors. 
• Get free legal help from a Community Law Centre. 
• Contact MoneyTalks on 0800 345 123 or text 4029. It’s a free service designed to support all New Zealanders to access personalised support from financial mentors. They can help soothe money worries and make a plan for working towards financial goals – like paying for your EPAs.  

Whom should you choose to be your attorneys? 

Deciding whom you’d like to appoint as your attorneys is kind of a big deal. They’ll be making important decisions on your behalf, potentially at a very difficult time for your whānau. Choose someone who: 

• Is at least 20 years old 
• You 100% trust and who understands your values and wishes. If you’re appointing more than one person to be your EPA for property, make sure they’ll be able to work together. You can require that they both have to sign any documents on your behalf, or allow each of them to act independently, but in consultation with the other person as much as possible. 
• Is financially responsible and good at managing money. Also, they can’t be bankrupt. 
• Is likely to be available and capable when you need them 
• Has agreed to take on the role and understands what they’re up for. 

Some people don’t have a suitable family member or friend they can ask, and that’s okay. In that case, a trustee corporation like Public Trust can act as the money and property attorney (there is a charge for this).

Common EPA mistakes to avoid 

• Waiting until it’s too late. You can put it off, but when life happens, everyone will be glad you didn’t!  
• Assuming your partner has automatic rights. They don’t. Without an EPA, even a wife or husband can’t legally access accounts that are in your name only. 
• Setting up only one type. A property EPA doesn’t cover personal care and welfare, and vice versa. It’s best to have both. 
• Not discussing your wishes with the person you’ve chosen to be your attorney. Have a detailed conversation about your values and what you want before you sign on the dotted line. 
• Forgetting to update EPAs after major life changes. Review your EPA documents after a breakup, or if your relationship with your chosen attorney changes or they pass away. 

If you’ve been asked to be someone else’s attorney 

Before agreeing, make sure you understand what this responsibility means. Community Law Centres throughout the motu provide free advice if you want to talk it through before you say yes. It’s okay to say no if you don’t feel able to take on the role. Remember, you must: 

• Act in the donor’s best interests – not that of other family members 
• Keep the donor’s money and the things they own separate from yours 
• Keep records of all decisions and transactions 
• Consult the donor wherever possible, even if their capacity is limited. 

Here’s our guide on looking after an ageing family member’s finances. 

Where to get more info and help

• Age Concern – including free, downloadable booklets in English and te reo Māori 
• Office for Seniors 
• Consumer 
• Public Trust
• A lawyer  
• A Community Law Centre 
• The New Zealand Law Society 

EPA FAQs 

Can my spouse access my bank account without an EPA? 

No – and same goes if you’re in a de facto relationship. Without an EPA, no one has automatic legal authority over your finances, so they’d need a Family Court order to access any accounts that are in your name only. With an EPA in place, they’ll have that authority immediately when it’s needed. 

What’s the difference between an ordinary power of attorney and an enduring power of attorney? 

A general or ordinary power of attorney stops working when you lose mental capacity – right when you need it most! An enduring power of attorney kicks in or continues specifically when you lose capacity. For the purpose of protecting yourself, only an EPA is going to do the trick. 

Can I change or cancel my EPA? 

Yep – as long as you’re mentally capable. If your EPA has already been activated because you’ve lost capacity, it can’t be revoked without Family Court involvement, but otherwise you can revoke an EPA at any time by signing a formal revocation document. You’ll need to get legal advice to make sure it’s done properly. 

Can I set up an EPA without a lawyer? 

You can save money by downloading the forms from the Office for Seniors, Ministry of Justice or wherever you choose and completing them yourself, but then they must then be signed in front of a qualified witness, like a lawyer, legal executive or trustee company representative.  

What happens to my EPAs when I die? 

EPAs end when you die. At that point, your will takes over and your executor manages your estate. This is why a will and an EPA work together – the EPA covers you during your lifetime; the will covers what happens after you die. 

Do I need EPAs if I have a family trust? 

Yes. A family trust manages the assets held within the trust, but EPAs manage your personal finances and welfare decisions outside the trust. Many people have both. Talk to your lawyer or trustee company about how EPAs interact with your trust structure.