Elder care and powers of attorney: overview

The law provides ways for you to plan for other people to make decisions for you if you lose the capacity to make decisions for yourself, whether through ageing, accident or illness. This is done by granting an “enduring power of attorney” (or “EPA”). If you haven’t made an EPA and you lose the capacity to make decisions for yourself, the law also provides ways for the courts or others to manage your financial and personal affairs in your best interests.

This chapter explains about:

  • appointing someone to make decisions for you under an enduring power of attorney, and what kinds of powers and duties that person (the “attorney”) will have
  • different orders that the Family Court can make to manage your personal or financial affairs or to appoint someone (a “welfare guardian” or a “property manager” or both) to do this for you
  • when the law sees you as having lost mental capacity (the ability to make decisions for yourself)
  • laws that protect older people from abuse and neglect, under the criminal law and under the domestic violence laws.

The main legislation: The Protection of Personal and Property Rights Act 1988 (The “3PR” Act)

The Protection of Personal and Property Rights Act 1988 (often referred to simply as “the 3PR Act”) provides legal ways to assist people who through age, accident or illness are no longer fully able to manage their own affairs. The Act also stresses the importance of people managing their own affairs and making their own decisions wherever possible, and provides ways of helping people to do this.

The Act can help people to plan ahead and prepare for future possibilities by arranging powers of attorney (see “Power of attorney: Appointing someone to make decisions for you” in this chapter).

The Act also provides for the Family Court to make various orders when people lose capacity to make their own decisions. These orders relate to a person’s personal care and welfare and a person’s property (see “Court orders when you can’t make decisions for yourself” in this chapter).

Key terms and definitions

3PR Act – Protection of Personal and Property Rights Act 1988.

Attorney – A person appointed to act on another person’s behalf.

Donor – The person giving the power of attorney.

Enduring power of attorney (EPA) – A power of attorney made under the 3PR Act which continues to be valid after the person giving the power has lost mental capacity.

Estate – The assets a person owns.

Mental capacity – The ability to understand the nature and foresee the consequences of decisions, and/or the ability to communicate these decisions.

Ordinary power of attorney – A power of attorney made under the common law (not under the 3PR Act).

Personal order – An order made by the Family Court under the 3PR Act, dealing with the personal care and welfare of a person who is unable to make and communicate decisions about these matters.

Power of attorney – An authority given by one person (the donor) to one or more others to act on the donor’s behalf, either in all matters or only on specific issues stated in the power of attorney.

Property order – An order made by the Family Court under the 3PR Act appointing a property manager for a person who is unable, partly or completely, to look after their own property affairs.

Property manager – A person appointed by the Family Court, by a property order made under the 3PR Act, to look after the property rights of a person unable to manage their own affairs.

Relevant health practitioner – A registered health practitioner whose scope of practice includes assessing a person’s mental capacity.

Trustee company/corporation – a company or corporation appointed to be a person’s property manager under the 3PR Act, including the Public Trust, the Māori Trustee, and other companies to which the Trustee Companies Act 1967 applies.

Welfare guardian – A person appointed by the Family Court, by a personal order made under the 3PR Act, to look after the personal care and welfare of a person who is unable to properly care for themselves.

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