Do you need assistance understanding your obligations as an attorney?
Contact Jason Hendriks — expert in Enduring Powers of Attorney.
14 November, 2014 | Jason Hendriks
Harry remembered his father had signed Enduring Power of Attorney (EPOA) documents a number of years back but had no idea how to use the documents or what powers they gave him.
Understanding the purpose of invoking an EPOA can ensure the right decisions are being made for an individual when they can no longer make decisions themselves. Below is a list of common questions and answers to help you understand the role of an enduring power of attorney for personal care and welfare.
An Enduring Power of Attorney for Personal Care and Welfare can only be invoked when an individual has been certified as mentally incapable. Mentally incapable is defined as someone who:
Recent high profile legal cases (for example the case involving the Financial Markets Authority and Mark Hotchin) and the abolition of gift duty highlight the need for higher standards of trust management to ensure that the legitimacy of your trust will not be challenged. Further, the New Zealand Law Commission has commenced a full scale review of trust laws with a result that there may be radical changes.
The individual’s lawyer will normally store the original enduring power of attorney document. Copies of the power of attorney should also be given to the individual’s doctor and care facilities. If you’ve been appointed as the attorney, you should be made clear of your role so when the individual is no longer capable of making decisions you will immediately be able to step in and make those decisions on their behalf.
Types of decisions an attorney for personal care and welfare can make are:
Types of decisions an attorney for personal care and welfare cannot make are:
You must act according to your legal obligations and the power of attorney document itself.
As an attorney, your paramount consideration is the promotion and protection of the donor’s welfare and best interests, while seeking at all times to encourage the donor to exercise their own capacity and act on their own behalf to the greatest extent possible.
Under the power of attorney document you may have obligations to consult with or provide information to other people, such as your siblings for example, before exercising your power of attorney.
If you become bankrupt or incapacitated yourself, the power of attorney will lapse. The power of attorney may also be revoked or suspended by the donor simply by them providing you with notice in writing.
If the donor passes away, the power to act as attorney ceases and the affairs of the deceased will become the responsibility of the administrators / executors of the estate.