Decision making: When others can legally make decisions for you
How you can appoint someone to make decisions for you: Enduring powers of attorney
Protection of Personal and Property Rights Act 1988
You can decide ahead of time who will make decisions for you and about you, if you become unable to make those decisions yourself. The way to do this officially is to make an “enduring power of attorney” (EPA), which gives a specific person the legal power to act on your behalf if you become “mentally incapable”.
If you don’t make an EPA, and you become unable to make your own decisions, or unable to communicate your decisions to others, people close to you will need to go to the Family Court to get it to make certain kinds of decisions about your life, or to appoint someone to make those decisions for you.
There are two kinds of EPA, one for your personal life (the official term is “personal care and welfare”) and one for your property and money. You can make either type, or you can make both if you want.
How do I make an enduring power of attorney?
Protection of Personal and Property Rights Act 1988, ss 94A, 95, 99, 112; Protection of Personal and Property Rights (Enduring Powers of Attorney Forms and Prescribed Information) Regulations 2008
There are specific forms to fill out. You can get these from a lawyer or from a trustee company like Public Trust or Te Tumu Paeroa/the Māori Trustee (see “Where to go for more support” at the end of this chapter). You’ll also need to get a professional person involved in signing the documents, like a lawyer or legal executive.
You can appoint the same person to be both your personal and property attorney – but make sure they have the financial skills to handle your money and property. You can also name someone to take over being your attorney if your first choice can no longer do it.
For more information about what’s involved in making an EPA, see “Enduring powers of attorney: planning ahead by choosing someone to make decisions for you” in the chapter “Decision making & powers of attorney”.
EPAs for personal care and welfare
Protection of Personal and Property Rights Act 1988, s 98
The person you appoint as your personal care and welfare attorney will be able to decide things like where you live, and whether you’ll have a medical procedure that’s been recommended by your doctor. You can only appoint one person to be your personal care and welfare attorney at a time.
Your attorney can start making small decisions for you if they reasonably believe that you’re no longer capable of making them yourself.
For bigger decisions – like whether you should go into residential care, or have a major medical operation – a professional person needs to assess you and decide you are “incapable”.
There are some extreme things an attorney is never allowed to do, like adopt out your children, or refuse medical treatment on your behalf.
For more about when your attorney can make decisions about you, see the chapter “Decision making & powers of attorney”.
Property EPAs
Protection of Personal and Property Rights Act 1988, s 97
You can say in the EPA when your attorney will start making decisions for you about your property. This could be right away, when you’re still “capable” but would rather not do things for yourself, or it might be only when you become “incapable”.
You can appoint a trustee company (like Public Trust) as your attorney if you want, rather than an individual. You can also appoint more than one person as property attorneys.
You can decide what kinds of things your property attorney will be able to do for you. It might be quite a small number of things or just one thing, such as managing a rental property for you – or it might be everything, including potentially selling your house or investing your money.
Your EPA doesn’t carry on after you die. So that means your property attorney doesn’t automatically become the executor of your will (see the “Wills” chapter for information about executors).
Making sure your attorney acts in your best interests
Protection of Personal and Property Rights Act 1988, ss 99A, 107
Your attorney has to act in your best interests and help you to be as involved in decision making as you can be. You can say in your EPA that there are specific people your attorney has to consult with or tell about their decisions. The Family Court can step in if there are concerns.
Cancelling or changing your EPA
Protection of Personal and Property Rights Act 1988, s 105
You can cancel (revoke) an EPA at any time while the law considers you to be “mentally capable”.
If you become able to make your own decisions again (if you come out of a coma for example), you can take back your power to make decisions by telling your attorney in writing.
