Taking care of your future gets easier
Enduring Power of Attorney (EPA) forms have been changed to make them easier to understand and use. The forms can be found at: http://superseniors.msd.govt.nz/finance-planning/enduring-power-of-attorney/
An EPA is a legal document which sets out who can take care of your personal or financial matters if you can’t. That person is called your attorney.
There are two types of EPA – one for property and the other for personal care and welfare.
While people setting up EPAs are well protected, a review found some people find them difficult to set up.
The changes will:
- make it easier for two people who appoint each other as attorney (e.g., husband and wife) to have the same authorised witness
- provide the option to cancel previous EPAs in the EPA
- allow you to cancel an existing attorney without affecting the EPA if there is a successor attorney who can act
- change the requirements for medical certificates of incapacity so that health practitioners can use their own forms so long as they contain the required information
- require your authorised witness to certify that you understand what the documents are about and you are not being pressured to sign the EPA.
Previous EPAs that have been completed by you and your attorney won’t be affected by these changes. However, any medical certificate about mental capacity must comply with the new requirements.
If you and your attorney have completed EPAs on old forms but haven’t signed them before 16 March 2017, they’ll need to be re-done on new forms. An EPA is a legal document that must be witnessed by a lawyer, legal executive or employee of a trustee corporation. They’ll make sure you understand all your options, what the EPA document means and that it meets all legal requirements.
Frequently asked questions:
If I cancel my attorney – do I have to notify them of this decision?
Yes. That is the way your decision to do so becomes “active”. If you do not give notice, your original attorney can continue to act and their decisions will be valid. While you are mentally capable, you can cancel (revoke) your EPA or an attorney’s appointment at any time by giving written notice to your attorney (you should also give notice to any successor attorneys). However, if you have joint attorneys (and you have not elected for them to act jointly and severally) you will not continue to have a valid EPA unless you have chosen a successor attorney who can act.
You can choose to cancel your existing EPA(s) when you make a new EPA. If you do not notify your previous attorney of this, your new attorney or your lawyer can give them notice by providing them with a copy of your new EPA. It is important that the previous attorney knows the previous EPA is cancelled. If they are not notified, and you later become mentally incapable, they could make decisions on your behalf in good faith.
If my previous EPA stays the same, what does it mean that ‘any medical certificate about mental capacity must comply with the new requirements’? Do I need new medical certificates?
Previously, medical certificates about mental capacity have had to follow a form set out in regulations. This has caused problems where health practitioners have used their own, non-compliant forms. Health practitioners will now be able to use their own certificates, provided they contain all the information set out in the regulations. If a health practitioner previously used the form set out in regulations, there should be no need to change their certificates – but they have the option of doing so. No medical certificate that has been validly issued prior to the changes needs to be replaced, but if a certificate is required from 16 March 2017, it will need to contain all the information set out in the regulations.
Any health practitioner who has not been using the form set out in regulations should check to make sure they comply with the amended regulations. Lawyers should check their letters of instructions.
I have an existing EPA, under the changes, can I now cancel that attorney and appoint a new one without affecting that EPA?
You can now revoke (cancel) the appointment of your attorney without revoking the entire EPA. You need to have originally appointed a successor attorney (or a series of successor attorneys) to take over in the event that the original attorney is unable to act. If you want to appoint a new attorney who was not named as a successor attorney, you will need to establish a new EPA.
Do the changes to the EPA provide me greater protections from my appointed attorney taking advantage of me?
The changes introduce a requirement for attorneys to consult with other attorneys. The property form also includes a section in which people can set out how their attorney is allowed to benefit themselves. The forms and standard explanation will help people making an EPA to understand what options they have to protect themselves. They also explain attorneys’ responsibilities to help them understand the role they are taking on.
An EPA can help provide protection against financial abuse, because the donor has chosen someone they trust to look after their care and/or their treasured possessions, such as their house, money and belongings. That person then has a legal obligation to act in their best interests.
Of course, relationships can become fraught and stressful when the health and care of a loved one is involved and it is prudent to prepare for the worst. A donor may choose one or more people to monitor their attorney when they exercise their powers under the EPA. That may involve requiring their attorney to consult with these people before making decisions, or to supply them with information when asked about their actions as attorney.