Enduring Power of Attorney (EPA) for personal care and welfare
An EPA for personal care and welfare is a legal document. It gives someone you trust the power to make decisions about your health and welfare if you’re unable to.
The benefits of having an EPA for personal care and welfare
Just like with a will or an enduring power of attorney (EPA) for property, it’s good to be prepared in case something happens to you.
If you're over the age of 18, you should consider creating an EPA. If you have an accident, serious illness or mental incapacity and you become unable to make or communicate personal care or welfare decisions — this EPA can be activated, giving someone you trust the power to make these decisions for you.
An EPA does not replace anyone that you’ve chosen as executor or beneficiary in your will. Your EPA is separate from your will. When you die, the EPA has no further authority and your will takes effect instead.
Roles when creating an EPA
- Donor
- The person who the EPA is for. You decide if you want an EPA, what it covers and who you want to make decisions for you.
- Attorney
- The person who has the power to make decisions if the donor is assessed as being mentally incapable. They’re often a family member, a trusted friend, or someone from a trustee company. There can only be 1 attorney, and they do not need to be a lawyer.
- Lawyer
- The EPA must be created with help from either a lawyer, a qualified legal executive, or an authorised officer or employee of a trustee company.
- Successor attorney
- This is your back-up attorney, in case your attorney is unavailable or unable to perform their role.
- Suitably qualified medical practitioner
- A health worker who is qualified to assess a person’s mental capacity. It’s their job to assess your (the donor’s), mental capacity and to provide a medical certificate if they assess that you’re mentally incapable.
- Family Court
- If there are any issues with or disputes about an EPA, the family court can get involved.
Choose your attorney
Choosing your attorney is an important decision to make. You can only have 1 attorney to make personal care and welfare decisions for you.
Your attorney must:
- be at least 20 years old
- not be bankrupt
- not be subject to any Family Court personal or property order.
You can cancel your EPA or change your attorney by giving them written notice. You should also give notice to the successor attorney — if you’ve included one.
Things to consider when choosing your attorney
A family member or close friend may be your first choice however they might not be the best option.
It’s important to choose someone who:
- you trust
- will only do what you’ve specified in your EPA
- will do what’s best for you, not themselves — even if they’ll benefit from your will when you die
- understands how you want to be cared for
- is prepared to take on the responsibility and effort needed to be your attorney.
Your EPA attorney’s powers and duties — Community Law
The skills needed to look after a donor’s personal care and welfare can be different than what’s needed under an EPA for property. Consider having a different attorney for each type of EPA.
Be clear about the decisions your attorney can make
As the donor, you decide if your attorney can make decisions about everything to do with your personal care and welfare, or only some things.
Your attorney’s responsibilities will depend on the instructions you include in your EPA. Be as specific as possible.
If you allow it in your EPA, your attorney may need to decide, for example:
- where you live
- who you live with
- what clothes you wear
- who your carers are
- where you get your hair cut
- what medical treatment or therapy you have.
Decisions your attorney cannot make
Regardless of what you decide, your attorney cannot:
- make decisions about you getting married, separated or divorced
- make decisions about the adoption of your children
- approve you having surgery or treatment of your brain, including electro-convulsive treatment (ECT) for the purposes of changing your behaviour
- stop you from getting standard medical treatment that could save your life or prevent serious damage to you
- allow you to take part in any medical experiment, unless it might save your life or prevent serious damage to your health.
If you need cardiopulmonary resuscitation (CPR), your attorney must allow it.
If you decide you do not want CPR in some situations, you need to make an advance directive — sometimes known as a ‘living will’. An advance directive describes the medical care you do or do not want. You need to be mentally capable to make an advance directive.
Welfare guardian — if you do not have an EPA
Just because someone is your spouse, partner, close relative, child or friend, do not assume they have the legal right to make decisions for you.
If you do not have an EPA and you do not have the mental capacity to make decisions about your health and welfare, your family can apply to the Family Court to have someone appointed as your welfare guardian.
The Family Court decides:
- what your welfare guardian’s role is
- who your welfare guardian is
- at your 3-year review — if you still need a welfare guardian and who that should be. Without this review, the arrangement for you to have a welfare guardian will expire.
The process to get a welfare guardian can be expensive and slow and the court may not choose the person you wanted.
When you have an activated EPA and a welfare guardian, if there’s any disagreement between them, the welfare guardian has more power than your attorney.
How a property EPA is different from a care and welfare EPA
An EPA for property is quite different. It’s about managing your money and assets. For example, to have someone else:
- look after your money while you live overseas
- manage the sale of your home when you go into a residential care facility.
With an EPA for property, you can:
- activate this yourself — while you’re able to make property and financial decisions
- choose 2 or more attorneys
- continue to manage some parts of your property and finances yourself but get help with other aspects.
The EPA form
To create your EPA, you need to complete the EPA form. Instructions, descriptions of the legal terms and other information to help you complete it is included with the form.
When it’s all correctly filled out and signed, this form becomes your enduring-power-of-attorney legal document.
This form must be filled in, signed, and witnessed in the presence of either:
- a lawyer
- a qualified legal executive, or
- an authorised officer or employee of a trustee company (like Public Trust).
Your lawyer or legal advisor must explain the effects and implications of the EPA and answer your questions about it.
Your EPA will not be valid until it’s signed by all parties. Note that your attorney’s signature (and your successor attorney — if you have one), needs to be witnessed by someone other than you or your witness. The witness watches the attorney sign the EPA and then they sign the EPA too.
Get this EPA form online from the Ministry of Justice or ask for a copy wherever you get your EPA legal advice.
Set up an EPA: get the form — Ministry of Justice
Remember to check you have the care and welfare EPA form and not the property form.
Get a family or civil legal aid lawyer — Ministry of Justice
Help with your legal costs
You will be charged for legal advice — unless you can get legal aid or free legal advice from a community-based service.
If you cannot afford a lawyer, read about these options.
About legal aid
This is government-funded legal help. You usually need to pay some or all of it back. The Ministry of Justice website has legal aid information.
- Can I get family or civil legal aid? Ministry of Justice
- Apply for family or civil legal aid Ministry of Justice
- Get a family or civil legal aid lawyer Ministry of Justice
- What to expect from your legal aid lawyer Ministry of Justice
Also see: Qualifying for legal aid — Community Law
Free community-based legal help
Community law, Citizens Advice Bureau (CAB) and Auckland Disability Law all provide free community-based legal help.
- Free community legal help - Ministry of Justice
- Free legal help — how it works and if you’re eligible — Community Law
- Find your nearest Community Law Centre — Community Law
- Where can I get legal advice if I cannot afford a lawyer? — CAB
- Free legal services for disability-related legal issues — Auckland Disability Law
Discounted legal services for SuperGold card holders
Some lawyers offer their services at a discounted rate to SuperGold card holders.
Activate your EPA
An EPA has no effect and your attorney has no power to make decisions, until your EPA is activated.
Your EPA can only be activated by a suitably qualified medical practitioner and only if they assess you cannot make decisions about your personal care and welfare due to mental incapacity. They’ll provide a medical certificate for mental incapacity — which is needed to activate your EPA.
Once it’s activated, you (or your attorney) need to tell your care provider that you have an activated EPA for personal care and welfare. Give your attorney’s contact details to your care provider.
If you recover and you're assessed as having regained your mental capacity (by a suitably qualified medical practitioner), you can deactivate or cancel your EPA by giving written notice to your attorney and successor attorney. This applies, even if your EPA was activated.
Prescribed information for certificates of mental incapacity — NZ Legislation
Change, replace or cancel your EPA
As long as you're mentally capable, you can change, replace or cancel your EPA at any time — including changing your attorney.
Examples of why you might review your EPA:
- to check if it still meets your needs
- a change in your situation
- a change in your attorney’s situation.
The processes are different depending on whether you change, replace or cancel your EPA. It’s best to get legal advice, to make sure you choose the best option for your situation and follow the correct process.
You need to tell your attorney and successor attorney in writing if you change, replace or cancel your EPA. Remember to also tell your bank and anyone else who may need to be involved with your EPA.
Get help from the Family Court
The Family Court can:
- tell your attorney what to do
- help if there’s conflict between an attorney for personal care and welfare and an attorney for property
- review decisions your attorney has made
- support your family or others, such as your doctor or social worker, if they’re worried about your attorney’s decisions.
The Family Court can stop your attorney or cancel an EPA if it decides:
- your attorney is not acting in your best interests or not fulfilling their responsibilities
- you were pressured into appointing your attorney
- your attorney is unsuitable because of their relationship to you, their mental state or criminal activity.
It’s free to ask the Family Court to look into an enduring power of attorney.
Learn more about the Family Court’s role, who can apply to the court for help and get the forms to apply for an EPA to be reviewed.
The legislation for EPAs
The personal and property rights of people who are not able to manage their own affairs are set out in the Protection of Personal and Property Rights Act 1988.
This Act includes enduring power of attorney (EPA) for both personal care and welfare, and property.
Protection of Personal and Property Rights Act 1988 — NZ Legislation