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Decision making: When others can legally make decisions for you

How you can choose who might make decisions for you: Enduring powers of attorney

Protection of Personal and Property Rights Act 1988

By making an enduring power of attorney (an “EPA”), you can choose ahead of time a specific person you want to make decisions for you, if you become unable to make those decisions yourself. You have to be mentally capable at the time in order to set up an EPA.

If you haven’t chosen someone to make decisions for you through an EPA, and you lose mental capacity, your loved ones can ask the Family Court to either make decisions for you, or to appoint someone to make 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 both, or one or the other.

How do I make an enduring power of attorney (EPA)?

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. You’ll also need to get a professional person involved to prepare and sign 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 a back up attorney in case your first choice can no longer do it.

Below is a summary of EPAs. For lots more detail about what’s involved in making an EPA, see: “Enduring powers of attorney: planning ahead by choosing someone to make decisions for you”.

Choosing someone to make decisions about your personal life (a “personal care and welfare EPA”)

Protection of Personal and Property Rights Act 1988, s 98

What do they decide? The person you choose 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.

Who can I appoint? You can only appoint one person. You should think about who you can trust to make decisions that you might have made for yourself.

When can they start making decisions? A personal care and welfare attorney can only make decisions for you when you are not mentally capable to do so yourself. If your attorney thinks you can’t make decisions, they can start making small decisions for you. 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”.

What can’t they do? There are some extreme things an attorney is never allowed to do, like adopt out your children, or refuse medical treatment on your behalf.

Choosing someone to make decisions about your property and money (a “property EPA”)

Protection of Personal and Property Rights Act 1988, s 97

What do they decide? You can decide what kinds of decisions and actions your property attorney can make. It might be 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.

Who can I appoint? You can choose more than one person if you want to. You can also choose a trustee company (like Public Trust) if you want, rather than an individual. You can choose the same person for both EPAs. You should think about who has the skills to manage your finances and money.

When can they start making decisions? You can decide – you can say that they can start right away (when you’re still “capable” but would rather not do things for yourself), or it might be only when you become “incapable”.

What can’t they do? Your EPA can’t make decisions about your property after you die – the person you name as your “executor” in your will makes these decisions (for more information about wills and executors, see: “Wills”).

How do I know that my attorney will act in my 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.

How can I cancel or change my 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.

Did this answer your question?

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Where to go for more support

Community Law

Your local Community Law Centre can provide you with free initial legal advice.

Find your local Community Law Centre online: www.communitylaw.org.nz/our-law-centres

Auckland Disability Law (ADL) provides free legal services to disabled people associated with their disability related legal issues. ADL is the only specialist disability law community law centre in Aotearoa New Zealand.

Website: www.aucklanddisabilitylaw.org.nz/
Email: info@adl.org.nz
Phone:  09 257 5140
Text only: 027 457 5140

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DPA is a pan-disability organisation run by and for disabled people. DPA and its members work with the wider disability community, other disabled persons’ organisations, government agencies, service providers, international disability organisations and the public.

Website: www.dpa.org.nz
Email: info@adl.org.nz
Phone:  04 801 9100
Facebook: www.facebook.com/dpa.nz.7

Nationwide Health & Disability Advocacy Service

The Nationwide Health & Disability Advocacy Service offers free, independent, and confidential advice to support you in resolving issues with health and disability services.

Website: www.advocacy.org.nz
Email: advocacy@advocacy.org.nz
Phone:  0800 555 050

Le Va

Le Va is working with Manatū Hauora/Ministry of Health to support Pasifika people with disabilities and their families.

Website: www.leva.co.nz/our-work/disability-support
Email: admin@leva.co.nz
Phone:  09 261 4390
Instagram: www.instagram.com/Levapasifika
Facebook:  www.facebook.com/LeVaPasifika

Te Rōpū Taurima

Te Rōpū Taurima is a kaupapa Māori service that supports people of all ethnicities with intellectual impairments around New Zealand.

Website: www.terooputaurima.org.nz
Email: info@terooputaurima.org.nz

People First New Zealand

People First New Zealand is a self-advocacy organisation that is led and directed by people with learning disabilities.

Website: www.peoplefirst.org.nz
Email: ask@peoplefirst.org.nz
Phone:  0800 20 60 70

Deaf Aotearoa

Deaf Aotearoa is a national organisation representing the voice of Deaf people, and the national service provider for Deaf people in New Zealand.

Website: www.deaf.org.nz
Email: hello@deaf.org.nz
Phone:  0800 33 23 22
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Blind Low Vision NZ (previously called Blind Foundation)

Blind Low Vision NZ is New Zealand’s main provider of support to New Zealanders who are blind or have low vision.

Website: www.blindlowvision.org.nz
Email: generalenquiries@blindlowvision.org.nz
Phone:  0800 24 33 33
Instagram: www.instagram.com/BlindLowVisionNZ
Facebook:  www.facebook.com/BlindLowVisionNZ

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Achieve is a national network established to ensure equal opportunity and access to post-secondary education and training for people with impairments.

Website: www.achieve.org.nz
Email: info@achieve.org.nz
Phone:  03 479 8235

Inclusive Education

Inclusive Education provides New Zealand educators with practical strategies, suggestions and resources to support the diverse needs of all learners.

Website: www.inclusive.tki.org.nz
Email: inclusive@tki.org.nz

Government Agencies

Whaikaha/Ministry for Disabled

Whaikaha is the Ministry for Disabled People. On the website, it contains information about how to access support and funding and has a directory of advisory services.

Website: www.whaikaha.govt.nz
Email: contact@whaikaha.govt.nz
Phone:  0800 566 601
Text: 4206
Communication can also be made through NZ Relay Calls

Health and Disability Commissioner

The Health and Disability Commissioner website sets out your rights under the Code of Health and Disability Services Consumers’ Rights and how you can make a complaint to the Commissioner.

Website: www.hdc.org.nz
Email: hdc@hdc.org.nz
Phone:  0800 11 22 33

To make a complaint online: www.hdc.org.nz/making-a-complaint/make-a-complaint-to-hdc

Office for Disabled

The Office for Disabled is administered by a small team from Whaikaha, and works closely with government agencies and the disability sector to make the best decisions for disabled people.

Website: www.odi.govt.nz
Email: office_for_disability_issues@whaikaha.govt.nz
Phone:  0800 566 601

Ministry of Health Services and Support

Website: www.health.govt.nz/your-health/services-and-support

Te Kāhui Tika Tangata/Human Rights Commission

The Human Rights Commission website provides information about human rights in Aotearoa and outlines how you can make a complaint to the Commission about individual or systemic disability discrimination.

Website: www.tikatangata.org.nz/ or www.hrc.co.nz
Email: infoline@hrc.co.nz
Phone:  0800 496 877 (0800 4 YOUR RIGHTS)

To make a complaint online, download a complaint form or find out more about the complaints process: www.tikatangata.org.nz/resources-and-support/make-a-complaint

Privacy Commissioner

The Privacy Commissioner website provides information about your rights and responsibilities under the Privacy Act 2020 and the Privacy Principles. It also outlines the role of the Privacy Commissioner and how to make a privacy complaint.

Website: www.privacy.org.nz
Email: enquiries@privacy.org.nz
Phone:  0800 803 909

To make a complaint: www.privacy.org.nz/your-rights/making-a-complaint

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