An enduring power of attorney (EPA) is a legal document giving someone the power to act for us if we lose the ability to make decisions for ourselves.
There are two types of EPAs: one for money and property, the other for personal care and welfare. It is recommended to have both.
These rights can be given to the same person or to different people, but even if given to the same person, each power needs to be granted specifically and separately. There is the opportunity to be clear about where the rights can be applied.
Everyone 18 or older – whether young or old – should establish an EPA for both their property and their welfare. And, as it needs to be done when people are still mentally capable, it makes sense to do it as soon as possible.
People tend to think only the elderly are likely to need someone to manage their affairs but anyone can become mentally incapable at any age. An accident or illness may be the prompt for needing an EPA.
Anyone can appoint one 'attorney' (or more than one) for their money and property. An EPA for property can be activated straight away and, once that’s done, our attorney(s) can act for us on our instructions.
There may come a time when a qualified health practitioner assesses that we aren’t able to make these decisions ourselves – from that point on our attorney will have the power to act for us. As an alternative to it being activated straight away, we can choose for the EPA to only come into effect if this happens.
Without an enduring power of attorney, no one else can deal with our property or financial affairs on our behalf without a court order. Our family and even our partner or spouse may need to go to court to get this power. Not having an EPA can cause our loved ones a lot of stress and cost them a lot of money too.
Things our attorney can do for us include managing bank accounts, paying bills, or buying and selling property on our behalf.
We can only appoint one attorney for our personal care and welfare. This enduring power of attorney is only activated once we are assessed as not being able to care for ourselves. This type of attorney can make decisions about things like medical treatment.
An attorney should be someone we trust. We can appoint different people to be attorneys for the two different areas – but we need to make sure they are people who can work well together!
For personal care and welfare the attorney can be a family member, friend or anyone who has our best interests at heart. It can only be one person and it cannot be a trustee company.
For a property EPA the attorney can be one or more people, or a professional trustee company. If more than one person is appointed, we can require that they act together, so that they both have to sign any documents on our behalf, or we can allow each of them to act independently, but always in consultation with the other person.
For both personal care and welfare and for property, a successor attorney can be appointed, who will become our attorney if the first person can’t act as our attorney, for example if they have died or are incapacitated.
Our attorney has to consult us as much as they can when they are making decisions for us.
Independent legal advice is required before creating an enduring power of attorney, as is having the documents witnessed by a lawyer, qualified legal executive or representative of a trustee corporation. Even married couples need separate legal advisers. This is serious business!
For more information talk to a lawyer or a community law centre. There's also helpful information and a downloadable booklet on the Age Concern website and more details from Consumer, and the New Zealand Law Society too.
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