Enduring powers of attorney: Planning ahead by choosing someone to make decisions for you
Protection of Personal and Property Rights Act 1988, ss 99, 99A If you want you can appoint the same person to be both your attorney for personal care and welfare and your attorney for property, or you can choose different people (and you can have more than one person for the property EPA). In making your decision, remember that the personal skills needed to look after someone’s personal care and welfare are different from those needed to look after someone’s finances and property, which usually require some business knowledge. If you do appoint different people, they have to consult with each other regularly.
In September 2008 new and additional requirements were introduced for making a legally valid enduring power of attorney. This section of the chapter explains all the current requirements. If you made your EPA before 25 September 2008, your signature only had to be witnessed by an independent person and there was no requirement for your witness to complete and attach a certificate. The new requirements introduced in 2008 place more responsibility on your witness – they have to be a lawyer or someone with professional knowledge about EPAs and they have to explain to you the effect of your EPA. Protection of Personal and Property Rights Act 1988, ss 94A, 95, 112; Protection of Personal and Property Rights (Enduring Powers of Attorney Forms and Prescribed Information) Regulations 2008 To be valid, your enduring power of attorney has to meet these requirements:
Epidemic Preparedness (Protection of Personal and Property Rights Act 1988 – Enduring Powers of Attorney) Immediate Modification Order 2020 At the date of publication, there are less strict rules around signing your EPA, so that the signatories (you, your attorney and the witnesses) are allowed to be in different places, for example, using Zoom, Skype, Facetime etc. These special COVID-19 rules are found in the Epidemic Preparedness (Protection of Personal and Property Rights Act 1988 – Enduring Powers of Attorney) Immediate Modification Order 2020 and needs to be renewed every 3 months by the government. It was last renewed on 19 September 2021. To check if the order has been renewed, go to www.gazette.govt.nz and search “Epidemic Preparedness (COVID-19) Notice 2020”.
Protection of Personal and Property Rights Act 1988, s 94A You’re not legally required to have a lawyer, as your witness for the EPA can be either a lawyer, a qualified legal executive, or a representative from a trustee corporation. However, there are a number of advantages to getting full, independent advice from a lawyer with experience in this area. They can advise you about what terms you might want to include in the EPA and they can make sure it properly expresses what you want to happen.
Protection of Personal and Property Rights Act 1988, ss 97, 99A, 99B, 107 There are some issues that an EPA must deal with – for example, an EPA for property must state whether your EPA decision-maker (attorney) can start making decisions on your behalf immediately while you’re still “mentally capable”, or whether they can do this only if and when you lose your “mental capacity”. An EPA can also include a number of optional provisions:
Protection of Personal and Property Rights Act 1988, s 97 When you make an EPA for your property, you should tell your EPA decision-maker what you own, where your possessions and documents are kept, and what your exact wishes are. You should:
If you specify in your EPA that it will take effect only when you become mentally incapable, your attorney can’t act on your behalf unless a doctor or other appropriate health professional has certified that you’re mentally incapable or the Family Court has decided this.
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