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.
