Enduring Power of Attorney: Why it's important

An enduring power of attorney ensures that the right decisions are made on your behalf, even when you're unable to make those decisions yourself. Our Canterbury Legal team works with you to build the right enduring power of attorney for your circumstances.

What is an enduring power of attorney (EPA)?

A power of attorney gives someone you trust the legal right to make decisions on your behalf, or sign documents for you. It may be that you do this because it’s more convenient for you to have them do it, or you’re travelling, or otherwise unavailable.

An enduring power of attorney allows them to make those decisions on your behalf when you’d be unable to make those decisions yourself. For example, if you’ve had an accident, are ill, or have developed dementia.

You can have an enduring power of attorney in relation to:

• your health and welfare
• your property
• or both.

It’s an important thing to have to make sure that you and your assets are looked after in the way you’d want them to be.

Do I need an enduring power of attorney?

We all hope that we’d always be able to make important decisions for ourselves. But that’s just not always the case.

If you anticipate losing that ability, then you should definitely take action when you’re able to. Because although we might think that our loved ones will be able to step in, the law doesn’t necessarily allow for that.

And even if you don’t anticipate any physical or mental incapacity, the unexpected can happen at any time. So having that person identified and available means that if anything does go wrong, you can rest assured you’ll be looked after.

It's a good thing to create in conjunction with a will.

How do I create an enduring power of attorney?

There are standard forms available for setting up your enduring power of attorney.

You and your attorney will each need to sign the forms. These signatures will need to be witnessed by one of the following:

• a lawyer
• a legal executive who is a member of, and holds a current annual registration certificate issued by, The New Zealand Institute of Legal Executives Incorporated, has 12 or more months’ experience as a legal executive, and is employed by and supervised by a lawyer:
• an authorised officer or employee of a trustee corporation.

You don’t necessarily need to involve a lawyer to plan or create your enduring power of attorney. However, we strongly advise you talk with us. 

We can help you ensure the enduring power of attorney operates exactly as you’d want it to. This is particularly important since you wouldn’t be able to monitor its implementation. We can also give you ideas as to what specifics you might want to include in your EPA.

Who should I choose as my attorney?

The person you appoint as your decision maker is known as an “attorney”. It’s not “attorney” in the sense of a legal professional - although you could appoint one as you choose.

You should think about someone you trust. Someone who would make the best decisions for you that reflect your values and opinions. It’s not about what they’d want to do. It’s about what you’d want.

It may be that you appoint one attorney for your health and welfare and a different one for your property. Perhaps your welfare attorney is a close family member or friend, and your property attorney is a lawyer or accountant. In the case of a property attorney, you can select more than one person to act jointly, or even choose a trustee corporation.

In both cases, your attorney must at least 20 years of age, and not bankrupt.

Whoever they are, you should be confident in their ability to manage your affairs the way you’d want them managed.

When does an enduring power of attorney go into effect?

The enduring power of attorney goes into effect when you’re deemed to be “mentally incapable”. 

• In the case of property, that means when you’re “not wholly competent to manage [your] own affairs in relation to [your] property”. 
• In the case of personal care and welfare, that means you lack the capacity to:
  • make decisions about your own personal care or welfare
  • or understand the nature of decisions about your personal care or welfare
  • or foresee the consequences of these decisions
  • or communicate decisions about your personal care or welfare. 

An appropriate medical professional will need to determine whether you are mentally incapable.

The enduring power of attorney has no effect when you’re still able to make decisions for yourself. This means that you can change your attorney, or any other details relating to your EPA.

And if you recover your ability to make decisions - you’re no longer mentally incapable - you can request that your attorney’s services be suspended until such time you might need them again.