Whether this for yourself or someone you care for, this page can help.
Why is it important?
You might assume that if you’re ever unable to make decisions, your partner or a close family member could step in for you. Many people think that. But the law doesn’t work that way.
Planning ahead can feel uncomfortable. But it gives you control over who can act for you, and how.
An Enduring Power of Attorney (EPA) lets you choose someone you trust to make decisions if you’re no longer able to. This option is set out under the Protection of Personal and Property Rights Act 1988 (PPPR Act).
An EPA is different from a will. It doesn’t replace the people named in your will, and it stops when you die. Your will only comes into effect after death.
What is it?
You might be thinking about what would happen if you couldn’t make decisions for yourself. An EPA is one way to prepare for that.
An Enduring Power of Attorney is a legal document that lets you appoint one or more people you trust to act for you if you lose mental capacity.
There are two types of EPA. You can choose one or both:
Thinking about future care decisions can feel overwhelming. But it helps to know who would speak for you if needed.
This type of EPA allows someone you appoint to make decisions about things like where you live, who provides your care, and your medical treatment.
It only comes into effect if you’re no longer able to make or communicate decisions yourself.
Key points:
- You can appoint only one attorney
- You can name a successor if that person can’t act
- You can give broad authority or limit it to specific decisions
If you’re unsure how much authority to give, it’s worth discussing this with your legal adviser.
Money decisions can become harder if your situation changes. Planning ahead can help protect your financial security.
This type of EPA allows one or more people to manage your finances. This can include your bank accounts, investments, bills, and property.
- Give full authority over your financial affairs
- Limit authority to certain assets or accounts
- Choose whether it starts straight away or only if you lose mental capacity
You can appoint more than one attorney, including a trustee company.
This EPA usually starts if you lose the ability to manage your affairs. But you can choose for it to begin immediately when it’s set up.
If you’re unsure what’s right for you, getting advice from a legal adviser will help you feel more confident in your decision.
Setting up an enduring power of attorney
Getting started can feel like a big step. You don’t have to figure it out alone.
You need to work with a lawyer, legal executive, or authorised trustee company officer to prepare an EPA. This information is to help you understand what’s involved and feel more prepared.
Choosing someone to act for you is a big decision. You’re placing a lot of trust in that person.
It helps to think carefully about who could take on that responsibility.
Things to consider:
• Whether there could be any conflicts of interest
• Whether they have the right skills for the role
• Whether they’re willing and available to act
Your attorney must:
• Be at least 20 years old
• Not be bankrupt
• Not be legally incapacitated
Different roles need different skills. You may decide to appoint one person for personal care decisions and another for financial matters.
If you’re unsure who to choose, it can help to talk this through with someone you trust.
You may worry about how decisions will be made on your behalf. The law sets clear expectations.
An attorney must always act in your best interests. This is called a fiduciary duty.
They must:
- Promote and protect your welfare and best interests rather than their own
- Act openly, honestly, and fairly
- Exercise reasonable care and skill
- Avoid conflicts of interest
- Only use your money and property as allowed
They must also involve you as much as possible. This includes talking with you and supporting your independence where they can.
Your EPA can set clear expectations. It can require your attorney to:
- Consult certain people
- Share information with named individuals
- Follow limits you include in the written document
If something doesn’t feel right about how an attorney is acting, there are options. The Family Court can review their decisions or step in if needed.
You might be wondering when an EPA actually takes effect.
Most EPAs begin when you’re no longer able to make or communicate decisions. The exception is a property EPA, which can start immediately if you choose.
You may be considered mentally incapable if:
- You can’t understand, make, or communicate decisions about your care, or
- You can’t manage your finances properly
Mental incapacity must be certified by a qualified health practitioner. Your attorney cannot make major decisions without this.
You can name the type of health practitioner in your EPA, such as your GP or a geriatrician. If there’s disagreement, the Family Court can decide.
If this feels complex, a legal adviser can help explain what it means in your situation.
You may find it helpful to think things through before meeting a legal adviser.
It can feel easier if you’ve had time to consider what matters to you and talked it over with whānau or trusted friends.
Planning ahead helps make sure your wishes are respected if you’re no longer able to express them.
You can download the checklists to help you prepare.
Setting up an EPA involves formal paperwork. Your legal adviser will guide you through it.
You must use standard forms under the PPPR Act.
Your legal adviser will:
- Explain the effect of the EPA
- Make sure you understand the document
- Confirm you have mental capacity
- Witness your signature
Your attorney will also need to sign, with their signature witnessed separately.
Keep your signed documents in a safe place. You can also give copies to people who may need them.
You can download the standard forms in our download section below.
Changing, varying, or revoking an EPA
Circumstances can change. It’s okay to review your arrangements.
You can change or cancel your EPA at any time, as long as you still have mental capacity.
Important points:
- A new EPA doesn’t automatically replace an existing one
- Revoking an EPA must be done in writing
- You need to inform your attorney and relevant organisations (like banks or care providers)
It’s important to get legal advice so everything is done correctly.
