Personal care and welfare enduring power of attorney
This enduring power of attorney (EPA or EPOA) gives someone you trust the power to make decisions about your personal care and welfare if you’re unable to.
The purpose of a personal care and welfare EPA
If you have an accident, serious illness or mental incapacity and become unable to make or communicate personal care or welfare decisions, this EPA can be activated — but only if you’ve already created it.
If you’re over 18, you should consider creating an EPA for your personal care and welfare.
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.
An enduring power of attorney for personal care and welfare is one of the 2 types of EPA. The other is an EPA for property — which is about managing your money, property and other assets.
Things that come under this EPA
A personal care and welfare EPA is about your health, wellbeing and enjoyment of life. It may include, for example:
- where you do and do not want to live
- who you live with
- who your carers are
- the medical treatment or therapy you’ll get
- your plan for the ongoing care of a relative living with you who you’re the carer for
- your preference to go into a care facility that allows residents to bring their pets
- what to do with your cat if you cannot have it with you.
Some aspects of an EPA for personal care and welfare do not apply to a property EPA. Only the unique aspects of an EPA for personal care and welfare are described here.
For everything else see:
- Enduring power of attorney
- Create an enduring power of attorney
- Property enduring power of attorney
- Ordinary power of attorney versus enduring power of attorney
- Definitions of enduring power of attorney roles.
The skills an attorney needs to look after your personal care and welfare may be different than what’s needed under an EPA for property. Consider having a different attorney for each type of EPA.
Examples of when this EPA is helpful
The following examples help to show why it’s a good idea to have an EPA for personal care and welfare.
Changing to hospital-level care
You live in a residential care home. Over winter you got pneumonia 2 times and spent a few weeks in bed. Your muscles are now weak and you’ve lost the strength to stand or walk.
Due to your lack of mobility, you now need hospital-level care. Unfortunately your current facility does not provide this. Your anxiety and worry about moving to another care home is also affecting your health.
Your attorney found a few possible options. Two of which she carefully researched, before recommending 1 of them. For each of these, she:
- toured the facility
- met some of the staff
- read the most recent audit reports
- went through the admission agreement with the manager
- arranged for you to also have a tour.
You’re delighted your attorney (your daughter-in-law), quickly found a nice new place for you to go into. You trust her judgement and respect that she found a good place for you without causing you more stress.
A serious head injury
Your adult nephew had an accident while kite surfing. The result was a serious head injury. You thought his confusion and disorientation would be gone in a couple of days but that’s not what happened. He needs trauma care, rest and as little stress as possible.
Before his accident your nephew had been working full time and living independently. It will be months before he can get back to his old life — that’s if he can.
Your nephew has an EPA for personal care and welfare and you’re his attorney. Now that the EPA has been activated, you’ve arranged for your nephew to transfer from hospital to a rehabilitation facility. He’ll stay there and get a few months of treatment. What happens after that will depend on his progress.
Consider your options before creating this EPA
You must get legal advice from a lawyer, qualified legal executive or a trustee corporation when creating your personal care and welfare EPA. You will be charged a fee for this.
It should reduce your legal costs, if you make some decisions before you get legal advice.
- Think about what your needs will be if your EPA gets activated — rather than your situation now.
- Who do you want to be your attorney? You can only have 1.
- Do you want to have a successor (back-up) attorney? You can only have 1.
- Who will your attorney need to consult with (other than you), when they make decisions about your personal care and welfare?
- What instructions and restrictions will you include in your EPA for your attorney?
- Will you still manage some aspects of your personal care and welfare yourself or will you give your attorney responsibility for all your personal care and welfare needs? Keep in mind the circumstances under which this EPA can be activated.
The only way to activate this EPA is if a suitably qualified medical practitioner:
- assesses you, and
- decides you do not have the mental capacity to make decisions about your personal care and welfare or to communicate your decisions.
Decide what’s appropriate for you
Make sure your personal care and welfare EPA is appropriate for your situation.
- You decide if your attorney can make decisions about everything to do with your personal care and welfare or only decide on some things. There are some decisions that your attorney cannot make.
- If you have any, do you want your children involved in your care?
- Do you want to have the same attorney as your partner?
- Should your EPA be the same, similar or different than your partner’s?
Your attorney’s responsibilities will depend on the instructions you include in your EPA. Be as specific as possible.
Create your EPA for personal care and welfare
When your EPA form is all correctly filled out and signed, it becomes your enduring power of attorney legal document.
Learn more about creating an EPA, including:
- choosing your attorney and their responsibilities
- options to help with your legal costs
- activating your EPA
- the signature and witness requirements
- the process of changing or cancelling an EPA.
Create an enduring power of attorney
Get the EPA form from the Ministry of Justice website or ask for a copy from wherever you get your EPA legal advice.
Set-up an EPA: get the forms — Ministry of Justice
Make sure you:
- use the form labelled ‘EPA Personal Care and Welfare’, and
- read the standard explanation for personal care and welfare document.
Activate your EPA for personal care and welfare
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.
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 change, replace or cancel (revoke) your EPA by giving written notice to your attorney and successor attorney.
Change, replace or cancel your EPA
Prescribed information for certificates of mental incapacity — NZ Legislation
Welfare guardian and personal orders — instead of an EPA
If you do not have an EPA for personal care and welfare and you cannot make or communicate decisions for yourself, your family can apply to the family court:
- to have someone appointed as your welfare guardian
- for personal orders.
A welfare guardian is appointed if the family court believes this is the only way to make sure the right personal care and welfare decisions are made for you.
Personal orders are used when specific actions must be taken on your behalf.
Apply for a welfare guardian
Your welfare guardian can do the same kinds of things for you as your attorney would under an EPA for personal care and welfare — but, it does depend on the responsibilities given to the welfare guardian by the family court.
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.
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.
Personal orders by the family court
A personal order is for decisions which would usually be part of an EPA for personal care and welfare — if you had one. For example, decisions about medical treatment or moving into a residential care facility.
Personal orders are made by the family court on behalf of people who are either completely or partly unable to:
- understand what a decision is about
- understand what could happen because of a decision made about their personal care and welfare
- communicate decisions about their personal care and welfare.
The court can only make personal orders for people who:
- usually live in New Zealand
- are 18 or older
- are 16 or 17 but only if they are, or have been, married or in a civil union or de facto relationship.
Personal orders can be applied for by:
- you, for yourself
- you, for a relative
- non-relatives, such as doctors and social workers.
The Ministry of Justice has information about personal orders: