How to activate enduring power of attorney NZ

5 August, 2022 | Kimberley Brown

Harry’s father was diagnosed with Alzheimer’s five years ago. Harry has recently noticed a marked decline in his father’s memory and his ability to engage in conversation. Now, Harry is beginning to worry about his father being at home by himself as well as his ability to make decisions about his health and wellbeing.

Harry knows that his father signed Enduring Power of Attorney (EPOA) documents years ago, but has no idea how to use the documents, or what powers they gave him.  What steps should Harry take to ensure his father’s personal care and welfare needs are met?

Understanding the process of invoking or activating an EPOA can ensure decisions can be made for an individual who has lost capacity if or when this becomes necessary. If you’ve been appointed as somebody’s attorney for personal care and welfare, you should have a clear understanding of your role, so that you can step in to make decisions on their behalf without delay.

Below are the answers to a list of common questions to help you understand the process for invoking an EPOA for personal care and welfare, as well as the role of the attorney.

When can an Enduring Power of Attorney for Personal Care and Welfare be invoked?

An EPOA for Personal Care and Welfare can only be invoked when an individual has been assessed and certified by a medical professional as no longer having mentally capacity. A person will be deemed mentally incapable to manage their own affairs if they lack capacity:

• to make a decision about a matter relating to his or her personal care and welfare; or
• to understand the nature of decisions about matters relating to his or her personal care and welfare; orto foresee the consequences of decisions about matters relating to his or her personal care and welfare or of any failure to make such decisions; or to communicate decisions about matters relating to his or her personal care and welfare.

What is the process to invoke or activate an Enduring Power of Attorney for Personal Care and Welfare?

The first step is to check the wording of the EPOA document to confirm whether a particular type of medical practitioner needs to carry out the assessment of mental capacity.  The assessment can usually be carried out by a general practitioner but the document itself or the circumstances may require the opinion of a specialist such as a geriatrician or neurologist.   The individual’s law firm will generally store the original EPOA document and will be able to release this information to the appointed attorney.

Once this has been determined, the next step is to arrange for the relevant medical practitioner to examine the individual to assess whether the power of attorney should be activated.  If the individual is determined to be lacking mental capacity, the doctor will provide a certificate confirming this.  In order to complete the certificate, the doctor will need some information about the EPOA document, including the date that it was signed, and may request a copy of the document if they do not already have one.

What happens next with the Enduring Power of Attorney?

The certificate of incapacity completed by the doctor will need to be provided to the lawyer.  Upon receipt of the certificate, the law firm holding the original document will note that the EPOA has been activated, and will release certified copies to the attorney.

The attorney should ensure that copies of the EPOA document have been given to the individual’s doctor and health care providers.

What decisions can I make if I have been appointed someone’s attorney?

An attorney for personal care and welfare matters can make decisions such as:

• Selecting a rest home for the donor; and
• What medical treatment the donor is to receive.

An attorney for personal care and welfare cannot make decisions such as:

• The refusal of live-saving medical treatment;
• Any decision relating to marriage or divorce; and
• The consent of medical experimentation.

What are my obligations when I am appointed as an attorney for personal care and welfare?

You must act according to your legal obligations and the EPOA  document itself.

As an attorney, your most important consideration is the promotion and protection of the individual’s welfare and best interests, while seeking at all times to encourage that person to exercise their own capacity and act on  their own behalf to the greatest extent possible.

Under the EPOA document, you may have obligations to consult with or provide information to other people, such as your siblings, before exercising your power of attorney.

When does my power to act as attorney end?

Your power of attorney will cease if you become bankrupt or incapacitated.

The power of attorney may also be revoked or suspended by the donor providing you with notice in writing, provided that they have mental capacity to do so.

In rare circumstances, the Family Court can cancel the attorney’s appointment.

If the donor passes away, the power to act as attorney lapses and the deceased’s affairs will become the responsibility of the administrators / executors of the individual’s estate.If you have accepted appointment as somebody’s attorney but you no longer wish to act, you can renounce your appointment by way of a notice of disclaimer.

What if there is no enduring power of attorney document in place?

If a person who no longer has capacity to manage their own affairs does not have EPOAs in place, an application to the Family Court for PPPR Orders will need to be made.  You can read more about that process by clicking here.

Applying for PPPR orders can be a stressful, time-consuming, and costly process, so it’s a good thing that Harry’s father put EPOAs in place before his Alzheimer’s progressed.  Once the EPOA is activated Harry will be able to make decisions regarding his father’s personal care and welfare without delay.