Enduring Power of Attorney (EPA)

• Overview
• FAQ

What is an enduring power of attorney?

An enduring power of attorney (EPA) is a legal document that gives a person or organisation the authority to make decisions on your behalf if you can't or don't wish to. There are two types of EPA; one specific to your personal care and welfare and the other specific to your property. You may choose to have one or both.

Why do I need an EPA?

We never know what to expect in life. For example, you may need to travel overseas at short notice, have a serious accident, suffer an illness such as a stroke or Alzheimer's disese, or want someone else to look after your affairs as you get older.

What is the difference between a power ofattorney and an enduring power of attorney?

A power of attorney is only effective while the donor (person giving authority) is still mentally capable. An enduring power of attorney can be effective irrespective of the donor's mental capabilities.

What happens if I don't have an EPA and I have an accident or get sick?

If you don't have an EPA and an important decision must be made or document signed, your family and friends must apply to the Family Court (under the Protection of Personal and Property Rights Act 1988) so they can help you. This can be costly and time consuming and the court may appoint someone you wouldn't choose. An EPA lets you decide who manages your affairs and how they will be managed.

What does a property EPA cover?

Anything to do with managing your financial affairs and assets. For example, managing property, collecting rents, paying bills, handling investments, managing your business etc.

What does a personal care and welfare EPA cover?

Anything to do with your personal health and wellbeing. For example, they can help decide whether you stay in your own home or move into an assisted living home, give consent to minor medical procedures and other health-related issues.

When should I review my EPA?

We recommend you review your EPA when you review your will. It is essential that the person named as your attorney still wants to, and is capable of dealing with your affairs. You can update your EPA whenever you wish as long as you have mental capacity.

Is my EPA revoked when I marry?

No, however, as you should be reviewing your will it is a good time to review your EPA.

How does an EPA end?

There are several ways EPAs end. These include:

• when you die
• if you revoke the EPA in writing while you are mentally capable
• if an attorney you have appointed loses mental capacity, becomes bankrupt or dies
• if an attorney you have appointed wishes not to act on your behalf
• if the Family Court cancels the appointment of your attorney.

What responsibilities does my attorney have?

Ultimately, your attorney must act in your best interest. They need to consult with you when acting on your behalf, encouraging you to develop and exercise the capacity you have. If you have named others in your EPA, your attorney must consult with them and keep them up to date regarding any actions taken. It is important that your attorney keeps accurate records of all decisions made and of anyfinancial transactions undertaken on your behalf.

Do I have any legal protection from actions taken by my attorney?

The law says that your attorney can only act as instructed by you within the EPA, and within the law. They are personally liable for acts of negligence or breaking the law.

Can my attorney live overseas?

Yes they can. However, it is preferable if they are as close to you as possible in case urgent decisions need to be made or actions taken. Living overseas may limit your attorney's knowledge of your affairs, especially your real estate and investments.

If I name someone as my attorney can they start doing things straight away?

If you wish. However, for your own peace of mind, it is advisable to make a note advising the attorney when they can start acting.

Should I name a substitute attorney?

We recommend you have a substitute attorney and Perpetual Trust is ideal for your property EPA, especially if you have not named us as your first attorney. We are independent, exist in perpetuity and are always available to act quickly.

Can I appoint my elderly spouse as my attorney?

It is fine to appoint your spouse but appoint a substitute such as Perpetual Trust in case he or she is unable to fulfil their role.

How can I include others in the decision making process?

You specify in the EPA that Perpetual Trust (or any other attorney) must consult with those you name (for example, your children) before making any major decisions on your behalf. You can also require your attorney to provide information to these people about decisions made on your behalf.

How do I know that Perpetual Trust will consult my children or others I have named before making decisions?

Legally, we are required to and it is in our best interest to. Remember, when you are no longer here, we will be responsible to your children (and/or others) as beneficiaries.

How much or how little can my attorney do?

That depends on what you want them to do. You make the decision on what you want your attorney to do and it can be as prescriptive or as wide as you are comfortable with. However, there are certain things they absolutely cannot do including:

• • refuse you necessary medical treatment
• • make decisions for you regarding marriage or divorce
• • make decisions regarding your children being adopted
• • allowing you to be part of medical experiments
• • agreeing to brain surgery and/or electroconvulsive treatment (ECT).

How can I limit my children's role to just operating my bank account?

We can prepare two EPAs - one giving your children power to operate your bank acount and the other allowing Perpetual Trust to handle major decisions.

I've already given signing authority on my bank accounts - isn't this sufficient?

If the signing authority is limited to bank account transactions, then that's all they can do.

Can an attorney charge for their services?

A family member may charge for their services. It is up to them. However, a professional will almost certainly charge. Fees will be based on the duties performed and the time involved in completing them.

In simple terms, what is mental incapacity?

In relation to property - this is when the donor is not wholly competent to manage their own affairs in relation to their property. In relation to personal care and welfare - this is when the donor lacks, wholly or partly, the capacity to understand the nature and consequences of decisions relating to their personal care and welfare. Or the donor may have the capacity to understand the nature and consequences of their decisions, but lacks the capacit

y to communicate these decisions.

Who decides when I have lost mental capacity?

A medical certificate must be provided by a registered health practitioner (for example, your GP) or a mental health nurse whose scope of practice includes assessing mental capacity. You can choose to specify in your EPA the qualified practitioner you want to assess your mental capacity. Remember though that their scope of practice must include assessing people's mental capacity.

What is a certificate of non-revocation?

This is a certificate issued by the person who holds the EPA to say that it is still current and has not been revoked. This certificate has to be signed whenever the EPA is about to be used. As a trust company, we don't need to sign such a certificate.

If I have any other questions, who can I ask?

Our team of specialist advisers are able to answer any additional questions you may have. EPAs are very important documents and our advisers will take you through step by step, ensuring you understand your rights and your attorney's responsibilities.

Didn't find an answer to your question?

Please feel free to make an online enquiry and one of our advisers will get back to you. Alternatively you can call your nearest Perpetual Trust office on 0800 737 738 or e-mail us: email@perpetual.co.nz