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Communtity Law Manual | Decision making & powers of attorney | Enduring powers of attorney: Planning ahead by choosing someone to make decisions for you

Enduring powers of attorney: Planning ahead by choosing someone to make decisions for you

Overview of EPAs

Giving someone an enduring power of attorney, or EPA, is a way of making sure someone you trust will make decisions for you if you lose the capacity to make and communicate your decisions yourself – for example, because of a serious head injury or mental illness.

The importance of EPAs is that, unlike an “ordinary” power of attorney, EPAs continue to be legally valid and effective even if you, the person who created the power, lose the ability to make decisions for yourself. In other words, the power “endures” past the point when you’re no longer “mentally capable” – if for example you’ve developed dementia in later life. That’s why EPAs are an important legal tool for planning ahead for when you might no longer be able to make decisions.

In fact, for one of the two kinds of EPA – an EPA for “personal care and welfare” decisions, as opposed to a “property” EPA – the power can start to operate only if you become mentally incapable, and not before.

Who’s who
  • You, the person who gives the power of attorney, are called the “donor”
  • The person you give the power to is called your “attorney”.

Two types of enduring power of attorney: Personal care and welfare EPAs and property EPAs

Protection of Personal and Property Rights Act 1988, s 96

There are two types of enduring power of attorney you can make:

  • EPA for personal care and welfare – You can appoint someone (your “attorney”) to make decisions about issues like where you’ll live, who’ll look after you and what medical treatment you might need. This kind of EPA can only come into effect once you’ve lost “mental capacity”, and not before.
  • EPA for property – This kind of EPA gives the person you appoint the power to make decisions about your money and property. You can give them a general power to deal with all these issues, or you can limit them to dealing with, for example, a particular bank account. In your EPA you can say whether the attorney can start using their powers and making decisions straightaway, or only if and when you lose “mental capacity”.

If you want you can make one of each type of EPA, in two separate documents. You can choose the same person to be your decision-maker (your “attorney”) under both EPAs.

What happens if I lose the ability to make my own decisions but don’t have an EPA?

Protection of Personal and Property Rights Act 1988, ss 8, 9(2)

If you become incapable of making decisions for yourself and managing your own affairs, but you haven’t made an enduring power of attorney, the Family Court can make orders for you (see “Family Court orders for your welfare and property” in this chapter). The judge won’t make an order unless it’s absolutely necessary, and any order they do make must intervene as little as possible into your life.

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