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Communtity Law Manual | Decision making & powers of attorney | Choosing someone to be your decision-maker (“attorney”) under an EPA

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

Choosing someone to be your decision-maker (“attorney”) under an EPA

Who should I choose to be my EPA decision-maker?

Protection of Personal and Property Rights Act 1988, s 95(3)

Choosing your decision-maker (“attorney”) under an EPA is an important decision and you should choose carefully. Naturally, people often choose a family member or close friend as their EPA attorney. Whoever you choose you need to be confident that you can trust them completely and that they’ll always act in your best interests. You should feel sure they would make decisions that would reflect your own views.

Your attorney will also need to have the skills necessary for managing your affairs. If they’re going to be dealing with your property, they’ll need to be capable of keeping proper records and accounts.

Restrictions on who you can appoint under an EPA

Protection of Personal and Property Rights Act 1988, s 98; Protection of Personal and Property Rights Act 1988, ss 95, 97

There are some legal restrictions on who you can appoint as your decision-maker (attorney) under an EPA:

  • Restrictions on who can be a care and welfare attorney
    • the person you choose must be at least 20 years old, and they can’t be bankrupt
    • you can appoint only one person to be an EPA attorney for personal care and welfare (but you can appoint more than one EPA property attorney: see below)
    • you can’t appoint a trustee corporation, like Public Trust or Te Tumu Paeroa/the Māori Trustee.
  • Restrictions on who can be a property attorney
    • they must be at least 20 years old, and they can’t be bankrupt
    • you can choose an individual person, like a family member, friend or business partner, or you can choose a trustee corporation, like Public Trust
    • you can appoint more than one property attorney. In your EPA you can say they have to make decisions together (you do this by appointing them as attorneys “jointly”), or you can give each one the power to make legally valid decisions (by appointing them “severally”).

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.

You can’t appoint a trustee company (like Public Trust) to be your attorney for care and welfare. So if a trustee company is your attorney for property, you’ll need to appoint someone else for care and welfare.

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