Enduring powers of attorney: Planning ahead by choosing someone to make decisions for you
Your EPA attorney’s powers and duties
Attorney’s rights and responsibilities
What are my attorney’s legal responsibilities?
Protection of Personal and Property Rights Act 1988, ss 97A, 99A-99C, s 107; Vernon v Public Trust  NZCA 388
You have to put a lot of trust in your attorney. They’ll be in a position with a lot of power and responsibility over you. The law calls this a “fiduciary relationship”.
In accepting their position, your attorney accepts extra responsibilities to always act in your best interests.
Your attorney is legally obligated to:
- Promote and protect your welfare and best interests – Your attorney should act with absolute openness and fairness towards you, exercise reasonable care, and avoid any conflict of interest with you. They must follow your instructions and make well-judged decisions.
- Consult with you and encourage you to be self-reliant – Your attorney must consult with you about decisions, as far as this is practical. They must also try to get you to develop and exercise whatever capacity you have to make decisions and act for yourself. A care and welfare attorney must also help you participate in community life as much as possible.
- Consult with other key people – When making decisions, your attorney must also consult with anyone else who you’ve specified in the EPA as people who should be consulted, and with any other attorney you’ve appointed under that EPA or another EPA. If you’ve appointed different attorneys for care and welfare and for property, both attorneys have to consult with each other regularly (not just when they’re making decisions) to make sure there’s ongoing communication between them.
- Give information to others – In your EPA you can name people who’ll have the right to get relevant information from your attorney. Your attorney will have to give them the information when they ask for it.
- Keep financial records – Your property attorney has to keep your money and property separate from their own and be able to account for it. They have to keep records of each financial transaction, and can be fined up to $1,000 if they don’t. Your care and welfare attorney also has to consider the financial implications of their decisions.
Can attorneys make decisions that will benefit themselves financially?
In general, your attorneys shouldn’t benefit themselves or anyone other than you, or recover expenses from your property, unless your EPA specifically says they can, or the Family Court allows it.
However, there are three exceptions to that general rule:
- if your attorney is your spouse or partner, and you’re living together and sharing incomes, they’re allowed to benefit from decisions they make about your joint money or property
- your attorney can recover reasonable out-of-pocket expenses they have because of their role as your attorney (but not lost wages, salary, or other remuneration)
- if your attorney is for example a lawyer or accountant, they can charge professional fees and expenses for work they did in that professional capacity to give effect to decisions they made under the EPA.
What if my attorney isn’t sure what to do?
Your attorney can apply to the Family Court for directions about what actions to take in your best interests. They might want to do this if, for example, they’re having some difficulty carrying out some of your instructions.