Acting as a personal care and welfare attorney

14 November, 2014 | Jason Hendriks

Harry’s father was diagnosed with Alzeihmer’s five years ago. It was not until recently that Harry noticed a real decline in his father’s memory and ability to carry on conversation. Harry began to worry about his father being at home by himself and his ability to make decisions about his health.

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.

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

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:

  • lacks the 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; or

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.

  • to 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
  • lacks the capacity to communicate decisions about matters relating to his or her personal care and welfare.
  • If you suspect an individual may be in this position then, check the wording of the enduring power of document to see who may make the determination of incapacity. It may be a general practitioner or it may be a specialist such as a Geriatrician. Once this has been determined, the relevant person can examine the individual to assess whether the power of attorney should be activated.

How is an enduring power of attorney document actually used?

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.

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

Types of decisions an attorney for personal care and welfare can make are:

  • Selecting a rest home for the donor
  • Deciding what medical treatment the donor is to receive

Types of decisions an attorney for personal care and welfare cannot make are:

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

What are my obligations when I am appointed as an attorney?

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.

How long may I act as an attorney for?

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.

Do you need assistance understanding your obligations as an attorney?

Contact Jason Hendriks — expert in Enduring Powers of Attorney.

email Jason
+64 9 837 6846

About the author

Jason graduated with an LLB from Auckland University of Technology in 2016, and joined Smith and Partners in 2017. A general practice lawyer, Jason is particularly focused on assisting clients with all aspects of residential property law and estate planning –
Read More »

Related articles

What are enduring powers of attorney and do I need them?

Jun 7, 2012 | Read more »

What happens when there is no power of attorney in place for an incapacitated person?

Oct 16, 2013 | Read more »