Enduring powers of attorney: Planning ahead by choosing someone to make decisions for you
Overview of EPAs
Giving someone an enduring power of attorney (“EPA”) is a way of making sure someone you trust will be able to make decisions for you if you lose the capacity to make and communicate your decisions yourself – for example, because of a serious injury, mental illness, or if you develop dementia in later life.
You can give someone an enduring power of attorney at any time in your life. This means you’re asking someone to make decisions on your behalf. However, you must have the ability to make decisions yourself (have “mental capacity”) at the time you appoint someone else as your attorney.
The key with an enduring power of attorney is that this power “endures” beyond your own ability to make decisions yourself. In other words, you can make an EPA (when you have mental capacity) to record who you want to make decisions for you if you’re not able to appoint someone or make decisions on your own (when you no longer have mental capacity).
Who’s who
- You, the person who gives the power of attorney, are called the “donor”.
- The person you give the power to is called your “attorney”. This doesn’t mean you have to choose a lawyer. Your attorney is the person who you appoint to make decisions on your behalf.
When should I make an EPA?
Protection of Personal and Property Rights Act 1988, ss 8, 9(2)
You should consider creating an EPA if:
- you’re able to make decisions for yourself, and
- you’re over 18.
If something happens and you become incapable of making decisions for yourself and managing your own affairs, but you haven’t made an EPA, your family won’t be able to make decisions on your behalf.
Your family would have to apply to the Family Court, which can be little more complicated and expensive than setting up an EPA in advance (see: “Family Court orders for your welfare and property”). The judge won’t make an order unless it’s absolutely necessary, and any order they do make must intervene as little as possible into your life.
Note: As well as making your EPA, you also might want to consider making an advance directive about future medical treatment. This is a set of instructions about the kinds of treatment you do or don’t want to receive if you lose the ability to give informed consent (for example, if you’re in a coma after a car accident). For information about advance directives (sometimes called “living wills”), see: “Disability rights”.
What’s the standard for “able to make decisions for yourself”?
S v Attorney-General [2017] NZHC 2629 at [777]; Protection of Personal and Property Rights Act 1988, s 5
Deciding when someone doesn’t have the ability to make decisions for themselves can be complicated. In this chapter we’ll use the terms “mentally capable” and “mental capacity” (sometimes also called “legal capacity,” “of sound mind,” or “mentally competent”).
In general, you’re considered to be mentally capable if you’re able to:
- understand information,
- appreciate the nature and consequences of a situation,
- use information rationally, and
- communicate those choices to others.
Importantly, making choices that others might not agree with is not evidence that you can’t make those decisions. For more information about who can decide if someone is mentally capable, see: “When can my attorney start making decisions on my behalf?” below.
There are two types of enduring power of attorney
- You can choose someone to make decisions about your personal care and welfare. For example, where you’ll live, who will look after you, and what medical treatment you need.
- You can choose someone to make decisions about your property, including all your money and assets. For example, paying your bills, and managing your money, KiwiSaver, and/or any other investments you have.
Often, people will make both EPAs at the same time, but you can choose to do one or the other if you’d prefer. You can appoint the same person to be your attorney in both, or you can appoint different people.
What decisions can my attorney make on my behalf?
Protection of Personal and Property Rights Act 1988, ss 18, 97, 98
A personal care and welfare attorney will make decisions about your day-to-day care – for example, where you’ll live, who will look after you, and what medical treatment you need.
A property attorney will make decisions about and manage your property, including your money, assets, investments, and KiwiSaver.
You can decide how much power your attorney will have. You can decide to:
- give your attorney a general power to deal with all these issues, or
- limit your attorney’s decision-making power to certain things (for example, you can exclude particular bank accounts, or you might give them authority to deal with your house, but not your money and other property), or
- place specific conditions and restrictions (for example, state that your attorney can borrow only up to a certain limit), or
- give instructions about certain decisions (for example, you can name which doctors you’d like your personal care and welfare attorney to consult), or
- restrict your property attorney from being able to sign a will on your behalf.
There are some types of decisions that your attorney can’t legally make for you, even if you give your attorney a general power to make decisions about all kinds of issues.
Your attorney cannot:
- make decisions for you about getting married or divorced, or adopting out your children
- agree to you having electro-convulsive treatment (“ECT”) or specific types of surgery or treatment (specifically, anything designed to change your behaviour, like a lobotomy), or being part of medical experiments (other than to save your life or prevent serious damage to your health)
- refuse to allow you to have standard medical treatment when it’s necessary
- request the option of receiving assisted dying on your behalf (see: “Euthanasia and assisted dying”).
When will my EPA kick in?
A personal care and welfare EPA can only kick in if and when you lose mental capacity, and not before.
You can decide when a property EPA kicks in – either immediately, at a specified time, or only if and when you lose mental capacity.
When can my attorney start making decisions on my behalf?
Protection of Personal and Property Rights Act 1988, ss 97(5), 98(3)
Your personal care and welfare attorney can make their own assessment of you, and if they believe on reasonable grounds that you are no longer mentally capable, they can start making minor decisions on your behalf.
However, they can’t make any significant decisions about your care or welfare on your behalf without getting a doctor (or other health professional) to assess you and provide a medical certificate. A “significant” care and welfare decision is one that will, or probably will, have a significant effect on your health, well-being, or enjoyment of life – for example, deciding whether you should go into residential care, or have a major medical operation.
Your property attorney cannot make any decisions until:
- the time at which you’ve decided that you want your property EPA to kick in, or
- a doctor (or other health professional) has assessed you and provided a medical certificate.
Who will assess whether I am mentally capable?
Except for more minor decisions about personal care and welfare, the decision about whether you’re mentally incapable must be made by a registered doctor, nurse or other health practitioner who is qualified to assess people’s mental capacity. For example, a GP, or a doctor who specialises in conditions that older people commonly get (a “geriatrician”), or a mental health nurse.
In your EPA you can specify that the decision should be made by a specific type of health practitioner, like a geriatrician.
The health practitioner will consider:
- medical evidence about your memory, comprehension, ability to focus on issues, and ability to exercise judgment and communicate it, and
- statements from family, friends and health professionals who’ve been able to observe you.
The health practitioner can’t assume that you are not mentally capable simply because:
- someone has arranged for your mental capacity to be assessed, or
- you’re doing or planning things that an average person in the same situation might not do, or
- you’re having compulsory mental health treatment (see: “Mental health”).
What happens if I get back my ability to make decisions?
Protection of Personal and Property Rights Act 1988, ss 96, 100A
If you lost your mental capacity for a time (for example, if you were very sick) but you’ve regained the ability to make decisions for yourself, you can choose to suspend your EPA, or cancel it altogether.
You can suspend your attorney’s power to act under the enduring power of attorney by giving them written notice. Once they’ve received the suspension notice, your attorney won’t be able to make decisions for you anymore.
However, a suspension notice doesn’t cancel (“revoke”) your EPA altogether. If you lose mental capacity again, your attorney can get another assessment from a health practitioner and start making decisions on your behalf again.
To revoke your EPA altogether, see: “Can I change my mind about giving someone an EPA?”.
