Enduring powers of attorney: Planning ahead by choosing someone to make decisions for you
Choosing an attorney: someone to make decisions on your behalf
How to choose an attorney
Who should I choose to make decisions on my behalf?
Protection of Personal and Property Rights Act 1988, ss 95, 97, 98
This is an important decision. There are restrictions about who you can choose as your attorney, including:
- Your attorney must be older than 20, and can’t be bankrupt, or be under a Personal or Property Order themselves (see: “Family Court orders for your welfare and property”)
- For your personal care and welfare EPA, you can only appoint one individual person as your attorney (like a family member, friend, or business partner). This has to be a person – you can’t appoint a trustee corporation.
- For your property EPA, you can choose to appoint more than one attorney if you want, and you can choose to appoint an individual person and/or a trustee corporation (like the Public Trust or the Māori Trustee/Te Tumu Paeroa).
When choosing your attorney, you should also:
- be confident that you can trust them completely, and that they will always act in your best interests
- feel reassured they would make decisions that would reflect your own views
- choose someone with the skills necessary for managing your affairs. For example, if they’re going to be dealing with your property, they’ll need to be capable of keeping proper records and accounts
- consider who they will be working with, as the attorneys for both EPAs (if you have both) will have to work together and consult each other regularly.
You can also appoint people who you want to be consulted or informed before your attorney makes a decision
- You can name specific people that your attorney has to consult with before making a decision, or certain decisions. However, consultation is a limited power. Your attorney is obliged to ask for and consider their input, but this doesn’t mean they have to follow their suggestions. Your attorney will have the final say.
- You can also require your attorney to inform specific people when they make certain decisions, or if those people ask your attorney for information. This is an even more limited power. The attorney only has to inform these people, and doesn’t have to take their feedback or opinions into account when making decisions.
Can I appoint multiple attorneys?
You can only appoint one attorney for your personal care and welfare EPA.
You can choose to appoint more than one attorney for your property EPA. You can structure this in different ways, either:
- The attorneys have to act as one unit (“jointly”):
- This means they have to make decisions together.
- However, if one attorney is unable to act (e.g., if they refuse the role, or have died), your EPA will be invalid. In other words, if your attorneys are acting jointly, all decisions have to be approved by all named attorneys.
- Or, the attorneys act individually and are assigned different roles (acting “severally”):
- This means your attorneys will have separate roles and responsibilities (for example, one manages your day-to-day bills and expenses, and the other manages your shares and investments).
- If one attorney is unable to act, but the roles have been split (they are acting “severally”), the other attorney is still able to carry out the role that they were assigned.
Can I appoint back-up attorneys?
Yes, you can appoint someone as a back-up (“successor”) attorney, in case your attorney is unable to carry out the role. Your attorney can’t decide to transfer their power to someone else.
This is especially important if you have more than one attorney and they are required to act jointly. If one is unable to carry out their role, your EPA will become invalid if you have not appointed a back-up attorney.
Can I appoint the same person to be my attorney for both EPAs?
Protection of Personal and Property Rights Act 1988, ss 99, 99A
If you want, you can appoint the same individual person to be both your attorney for personal care and welfare, and your attorney for property.
Alternatively, you can choose one person to be your attorney for your personal care and welfare EPA, and another person, group of people, and/or trustee corporation to be your attorney for your property EPA.
In making your decision, remember that the skills needed to look after someone’s personal care and welfare are different from those needed to look after someone’s finances and property.
If you do appoint different people for each EPA, they have to consult with each other regularly.
What if there’s a disagreement between my care and welfare attorney and my property attorney?
Protection of Personal and Property Rights Act 1988, ss 99, 101
If you have different attorneys for personal care and welfare and for property, and they disagree about something, the decisions of the care and welfare attorney override those of the property attorney. However, either of them can go to the Family Court for directions whenever there’s a disagreement.
The property attorney has to give the care and welfare attorney any financial support they need to carry out their duties, unless the powers you gave the property attorney don’t allow this, or if the Family Court has ordered otherwise.
