Enduring powers of attorney: Planning ahead by choosing someone to make decisions for you
Supervision and control of EPA decision-makers
The law allows for different ways in which others can supervise your EPA decision-maker (“attorney”) and intervene if they think something is wrong.
Supervision by people you’ve chosen
Protection of Personal and Property Rights Act 1988, ss 99A, 99B
When you make your enduring power of attorney, you can specify one or more people to play a kind of watchdog role over your attorney:
- you can name one or more people who your attorney has to consult with when your attorney makes decisions
- you can name one or more people who the attorney has to give relevant information to when they ask for it.
Supervision and intervention by the Family Court
Protection of Personal and Property Rights Act 1988, ss 102, 103
The Family Court has the power to monitor an EPA attorney’s performance, and, if necessary, to change the terms of the enduring power of attorney.
The Family Court can be asked to decide any disputed issues about an EPA or about the effect of the EPA, or about how an attorney has been carrying out their role.
Among other things, the Family Court can be asked to:
- decide whether you’ve become mentally incapable
- decide whether an EPA is legally valid and what its specific effect is
- review any decision that your attorney has made
- direct your attorney to do certain things
- cancel your attorney’s appointment – this could involve deciding whether you unfairly induced or pressured to sign the EPA, or whether your attorney is a suitable person to be your attorney.
Who can ask the Family Court to intervene in your attorney’s role?
Protection of Personal and Property Rights Act 1988, s 103
People who have an interest in your welfare can go to the Family Court and ask a judge to review any decision made by your EPA decision-maker. This includes:
- you, the donor
- a family or whānau member, including relatives such as grandchildren and nieces/nephews
- a doctor, a social worker from Child, Youth and Family, or the manager of any hospital, rest home or other place where you’re being cared for
- a representative from Age Concern or any other elder abuse and neglect prevention service
- another of your EPA attorneys, if you have more than one (for example, if your care and welfare attorney is concerned about a decision made by your property attorney)
- a trustee company
- your welfare guardian, if the Family Court has appointed one for you (see “Family Court orders for your welfare or property / Personal orders and welfare guardians” in this chapter)
- anyone else who gets the Family Court’s permission to apply.
EPA decision-maker can ask for directions from the Family Court
Protection of Personal and Property Rights Act 1988, ss 101, 102
Your EPA attorney can apply to the Family Court for directions about how to exercise their powers. They might want to do this if for example they’re having some difficulty carrying out some of your instructions.
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