Create an enduring power of attorney

Before you set up an EPA

If you have specific requirements about how your care and welfare or property needs are managed, your EPA (or EPOA) needs to include these.

Learn the basics about EPAs and what’s common to both types.

Enduring power of attorney

Get definitions for the various roles involved in an EPA.

Definitions of enduring power of attorney roles

Choose your attorneys

Choose the right people

Your attorneys must:

• be at least 20 years old
• not be bankrupt
• not be subject to any family court personal or property order.

It’s important to choose people 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
• can keep records of any decisions and actions they’ll take for you
• will listen when you describe your financial goals or how you want to be cared for
• are prepared to take on the responsibility of being an attorney
• have the time and skills needed to manage your money and property or health and welfare.

If you’re thinking of choosing someone you know

A family member or close friend may be your first choice however they might not be the best option — especially if:

• your financial affairs are complex
• they’re likely to move away from your location
• they’re also beneficiaries of your will.

You can cancel your EPA or change your attorneys by giving them written notice. You should also give notice to your successor attorneys — if you have any.

Change, replace or cancel your EPA

Make sure your attorneys work well together

When you choose your attorneys, make sure they all get along and can work well together.

If communication between your attorneys breaks down and disputes arise, you can ask the family court for help.

If things go wrong with your EPA

Your attorneys’ responsibilities

Your attorneys' responsibilities will depend on the instructions you include in your EPA.

As the donor, you decide if your attorneys can make decisions about everything to do with your care and welfare or property, or only some things.

Your attorney’s powers and duties — Community Law

Be specific about what you need

It’s best to say exactly what you need your attorneys to do. For example:

• the decisions they can and cannot make
• to consult with you as much as possible
• the other people they need to consult with
• who they need to give information to
• the people or businesses you do not want your attorneys to deal with
• if you allow them to use your money for their own benefit.

About EPAs and how to prepare before you see your legal advisor — Age Concern NZ

Consultation, decisions and restrictions

Let your attorneys know you’ve appointed them and who the other attorneys and successors are.

You can require your attorneys to consult regularly with:

• you, (the donor) — unless there’s a medical reason preventing your understanding
• the other attorneys and successor attorneys — for both types of EPA
• the other people you’ve specified in your EPA as needing to be consulted — perhaps your care givers, certain family members, your accountant or senior staff in your business.

Include your restrictions

Remember to include what you do not want. This is just as important as saying what you do want.

For example:

• a particular residential care facility you do not want to live in
• you request to continue being a vegetarian even if you’re no longer preparing your own food
• a family member who you do not authorise to borrow or buy your car when you can no longer drive
• your money must only be invested in funds or with organisations that make ethical investments.

Decisions your attorneys cannot make

Regardless of what you decide, your attorneys 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 attorneys must allow it.

An advance directive

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.

What is a living will? — Citizens Advice Bureau

The EPA forms

To create your EPAs, you need to complete the EPA forms. Instructions, descriptions of the legal terms and other information to help you complete them is included with the forms.

The forms 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 corporation.

Trustee corporations — Ministry of Justice

Your lawyer or legal advisor must explain the effects and implications of the EPAs and answer your questions about them.

Your EPAs will not be valid until they’re signed by all parties.

Your attorney’s signatures (and your successor attorneys — if you have them), need to be witnessed by someone other than you or your witness. The witness watches the attorneys sign the EPAs and then they sign the EPAs too.

Get the EPA forms online from the Ministry of Justice or ask for a copy wherever you get your EPA legal advice.

Check you have the right form for each EPA you want to create.

Set-up an EPA: get the forms — 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.

Activate your EPA

When your EPA can be activated depends on the type of EPA you're dealing with.

Activate your EPA for personal care and welfare

Activate your property EPA

Change, replace or cancel your EPA

As long as you’re mentally capable, you can change, replace or cancel (revoke) your EPA at any time — including changing your attorneys.

Examples of why you might review your EPA:

• to check if it still meets your needs
• a change in your situation
• a change in situation for your attorneys.

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 attorneys and successor attorneys 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.

Your attorneys cannot act after they receive notice that the EPA is terminated, their appointment is ended, or their authority to act is suspended.

• Changing or ending an EPA — Office for Seniors
• Ending an enduring power of attorney — Community Law

What happens to an EPA when you die

After you die, your attorneys:

• do not have any authority to deal with your property or personal care and welfare needs
• cannot make any more decisions on your behalf
• must not access or operate your bank accounts and other financial and property assets
• need to make sure all your EPA attorneys and successor attorneys know your EPA is no longer valid
• should tell the organisations they’ve been dealing with on your behalf, that you’ve died — starting with your bank.

Once notified, your bank will freeze your accounts — unless they’re joint accounts and the other account owner is still alive.

Your attorneys do not need to do anything if your EPA was never activated.

When you have an EPA and a will

Your EPA:

• is separate from your will
• does not replace anyone you’ve chosen as executor or beneficiary in your will.

Only the executors of your will can deal with your financial and property assets after you die.

If you don’t have a will then no one has authority until probate or letters of administration are granted. This is a legal process.

What you need to do when someone dies

Probate and wills