About this Guide

This guide provides an overview of what an enduring power of attorney is and explores the alternatives available if an enduring power of attorney is not in place. It covers how to create an enduring power of attorney, the benefits and risks involved, and what to consider when appointing someone as your attorney. The guide also includes information on how to keep your enduring power of attorney up to date, what to do if you have property overseas, and how to handle changes, suspensions, or cancellations of an enduring power of attorney. Additionally, it offers advice for those chosen as attorneys and their responsibilities, and provides resources for further information.

What is an Enduring Power of Attorney?

An Enduring Power of Attorney (EPA) is a legal document that lets you choose someone you trust called an “attorney” to make decisions for you if you ever can’t make decisions for yourself.

You can create an Enduring Power of Attorney while you are mentally capable, which means that you understand the decisions you are making, and what effect they will have.

The purpose of making an Enduring Power of Attorney is to ensure that if something happens in the future and you lose mental capacity (so you are unable to make decisions for yourself), you know who will make them for you, and what kinds of decisions they can make. This means important decisions can be handled smoothly and in the way you wanted.

There are two types of Enduring Power of Attorney, a ‘property attorney’ and a ‘care and welfare attorney’.

Your property attorney manages your property, which is anything that a person owns, like their house and their belongings.

Your care and welfare attorney manages your health, living arrangements, and personal care. They might make decisions like choosing medical treatments, deciding where you live, and how your daily needs are met.

Neither attorney has to be a lawyer. An attorney just means someone who is chosen to make decisions or take actions on behalf of someone else in business or legal matters.

The key feature of an Enduring Power of Attorney is that it works if you become mentally incapable and can no longer make or understand decisions about your own care, property, or wellbeing. This could be for many reasons, but is often because of illness, injury, or disability.

You can choose when your property Enduring Power of Attorney comes into effect and allows your attorney to start making decisions on your behalf. It may come into effect either —

(a) immediately after signing it and stays valid if you become mentally incapable; or

(b) only when you become mentally incapable.

Care and Welfare Enduring Power of Attorney’s are different - they only come into effect when you are mentally incapable, allowing your attorney to make decisions about your personal care and wellbeing from that point on.

Usually, people choose to have both types of Enduring Power of Attorney come into effect only when they become mentally incapable.

If you have two different attorneys, they may have to work together. For example, your care and welfare attorney may work with your property attorney to help get you private healthcare if they think that is what is best for you. They will also try to work with you, as much as that is possible.

The Alternative: PPPR (Protection of Personal and Property Rights) Orders

If you do not have an Enduring Power of Attorney in place, no one can automatically begin making decisions for you if you become incapable. Your next of kin doesn't automatically have the same decision-making power as an attorney if you have not appointed one. Medical personnel may not listen to family members unless they have been appointed through an enduring power of attorney or by the Family Court. Sorting out care and property decisions requires a complex process via the Family Court, which is best avoided.

Instead, an application must be made for a PPPR order. A PPPR order allows the court to choose someone to make important decisions for you.

An application for a PPPR order is made to the Family Court. This can be a complicated process with many steps. It involves getting a medical assessment, making an application, notifying family members, filing multiple documents in court, having a lawyer make an assessment of the person applying, and the court approving that person to make decisions for you.

Applications for PPPR orders can be “contested” - that is, multiple family have different opinions about who should be appointed to make decisions for the person who is unable to make decisions for themselves (the incapacitated person). Because the incapacitated person did not make an Enduring Power of Attorney, they do not get to choose who will make decisions for them, what type of decisions they can make, or how they should make those decisions. Rather, it is the Family Court who gets to decide.

If someone is appointed to make decisions under a PPPR order, instead of being a property attorney or a care and welfare attorney, they will be appointed as either—

(a) a ‘welfare guardian’, which is similar to a Care and Welfare attorney, or;

(b) a ‘property manager’, which is similar to a Property attorney, or;

(c) a ‘property administrator’, which is someone who manages just one, small item of property.

You can find out more about PPPR orders here:

• A Guide to Making Applications under the PPPR Act (this resource is slightly outdated, but it is comprehensive); and
• Community Law’s Website.

Making an Enduring Power of Attorney

Should I make an Enduring Power of Attorney?

Yes. Every eligible person should make an Enduring Power of Attorney, regardless of their age or circumstances.

You are eligible to make an EPA if you are aged 18 or older, and have mental capacity. Being mentally capable means that you understand the decisions you are making, and what effect they will have.

Enduring Power of Attorneys are designed for situations where you can no longer make good decisions for yourself. This might be something you expect, like an illness that slowly affects your ability to think clearly, or something sudden, like an accident. Having an Enduring Power of Attorney in place is important, especially for unexpected events when you and your family haven’t had time to plan or talk about what you want.

The benefits and risks of creating an Enduring Power of Attorney are presented in the table below. It is a good idea to think about ways you can avoid the risks when creating your Enduring Power of Attorney.

Benefits

Risks

Makes the process easier for your family when you lose capacity. If you did not create an EPA, your family will need to go through the complicated process of applying to the Family Court for a PPPR order. You can tailor your EPA, including limiting their powers to help ensure they make decisions you would agree with. You can appoint multiple property attorneys and require them to consult with each other, helping to make sure decisions are carefully considered.

It could make you vulnerable to mistreatment or financial abuse. they could make decisions that don’t truly reflect what you want. In the worst case, they might misuse their power, like spending your money in a way that benefits them instead of you. If you set too many limits or don’t clearly explain your wishes, your attorney might not be able to make the best decisions for you. This could slow things down or stop them from helping when you need it most. Your EPA might become out of date if your situation or preferences change over time. The choices you made in the past might not match what you want now, so it’s important to keep your EPA updated.

Am I allowed to make an Enduring Power of Attorney?

To be eligible to make an Enduring Power of Attorney, you must be at least 18 years old and mentally capable.

What should I think about before and while making my Enduring Power of Attorney?

Who can be my attorney?

You may appoint any individual to be your attorney, except for the following people (PPPRA, section 95(3)):

• People under 20 years old at the time you make your Enduring Power of Attorney;
• People who are bankrupt at the time you make your Enduring Power of Attorney; and
• People who are not mentally capable themselves at the time you make your Enduring Power of Attorney.

If you appoint someone as your attorney, but they later become bankrupt or lose mental capacity, they will no longer be able to act as your attorney (PPPRA, section 106). You should appoint successor attorneys in case your first choice of attorney is unable to act for you.

If you appoint a successor attorney in your Enduring Power of Attorney, they will take over if your first choice can no longer act. This makes sure that someone you trust will still be able to make decisions for you.

You may appoint a trustee company as your property attorney, but not as your care and welfare attorney. A trustee company is a business that manages money and property, and can make good financial decisions for you.

You may have more than one property attorneys at the same time, but only one care and welfare attorney at a time.

If you choose to have more than one property attorney, you can also choose whether they make decisions together (jointly), separately (individually), or a mix of both.

You can choose one person to be both your property attorney and your care and welfare attorney.

What powers does my attorney have?

You can choose what your attorney is allowed to do and what they can’t do.

For example, you can decide whether your property attorney handles everything to do with your belongings (acting generally) or just some things, like your house but not your bank account (acting specifically) (PPPRA, section 97).

The standard form for appointing a property attorney allows you to choose from the following options:

“My attorney can act on my behalf on: (tick one) all my property affairs only the part of my property affairs I have specified: [specify part(s)] only the following specified things: [specify thing(s)] My attorney’s authority to act is subject to the following conditions and restrictions: (optional) [write any conditions or restrictions].”

The same is true of your Care and Welfare attorney. On the standard form, you may choose amongst the following:

“

“My attorney can act on my behalf on: (tick one) all my personal care and welfare matters only the matters relating to my personal care and welfare I have listed: [list matter(s)] My attorney’s authority to act is subject to the following conditions and restrictions: (optional) [list any conditions or restrictions].”

You can require that your attorneys (of both types) consult with people or provide information to people of your choosing.

How can I make an Enduring Power of Attorney?

There are two key steps to making an Enduring Power of Attorney

• (1) Your Enduring Power of Attorney must be in the “prescribed form”;
• (2) Your Enduring Power of Attorney must comply with formalities (including being witnessed by a legal professional).

Your EPA must be signed in front of a legal professional, like a lawyer, who can confirm that you understand what you're agreeing to and that you're signing it willingly.

It’s a good idea to talk to a lawyer (or the Public Trust) to complete the whole process with you from beginning to end. They’ll probably also check that your will is up to date. If you have a will, this is a convenient time to review it.

Writing your Enduring Power of Attorney in the prescribed form

You may prepare your Enduring Power of Attorney by yourself using Te Tari Kaumātua’s DIY forms:

• Enduring Power of Attorney in relation to personal care and welfare including witness certificate (.pdf format);
• Enduring Power of Attorney in relation to property including witness certificate (.pdf format); and

You can obtain .docx formats from this link if you wish to fill in your forms using Microsoft Word. You will have to do this if you want to:

• Write more in the space than the default sizes allow you to (by increasing the size of the spaces);
• Appoint more attorneys or successor attorneys than the form allows you to by default (you may copy, paste and modify the relevant sections, and do not forget the corresponding signature and witness sections); or
• Require your attorney(s) to consult or provide information to more people than the form allows you to by default (you may copy, paste and change the relevant sections).

The witness certificates at the end of the Enduring Power of Attorney document will be used by the legal professional to complete your Enduring Power of Attorney.

If you want both types of Enduring Power of Attorney, you should complete both forms.

You should make sure you understand all of the information in the forms before filling them out. This guide and the extra information linked at the end of this part can help you understand the information in the forms.

You can add to what you know by reading the information in this guide and the extra information linked at the end of this Part.

If you don’t understand any part of the form or the role of attorney, you may wish to fill in the form with the help of a legal professional.

Formalities

If you have chosen to write your Enduring Power of Attorney(s) yourself, you must have one of the following people to witness and help you sign you Enduring Power of Attorney(s):

• A lawyer;
• A law firm; or
• A trustee company (the Public Trust or Māori Trustee, for example).

While all lawyers are qualified to help you, a law firm or trustee company may provide you with a non-lawyer (with other qualifications) to help you. Ensure you notify them that you want them to help you complete an Enduring Power of Attorney you have prepared for yourself.

Your attorney(s), including your successor attorneys, if you have them, must also sign in the presence of a witness. This witness cannot be yourself or the professional witness who helped you sign your Enduring Power of Attorney(s).

Who should have a copy of my Enduring Power of Attorney

You should give a copy of your EPA to all your attorneys and successor attorneys.

If you have made different people your property attorney and your care and welfare attorney, it is best practice to give all attorneys (including successor attorneys) both EPA documents so they can work together when they need to.

You should also give a copy to your significant other and other close family members. Store your own, original copy, amongst your important documents.

Advanced Care Plan

If you make an Enduring Power of Attorney, you might consider whether you also want to prepare an Advanced Care Plan (sometimes referred to as a "living will"). An Advanced Care Plan allows you to lay out your wishes and preferences for your care whilst you are still able to. They are not just for end-of-life arrangements - you may also wish to lay out your wishes in case of sudden illness or accident.

You can find out more information about making an Advanced Care Plan here:

Resource	Description
Tō Tātou Reo | Advance Care Planning	This resource can help you make an Advanced Care Plan.
ACP form	This resource is a part of the above resource. It is a form for you to fill in, and it considers all the matters that should be contained within an Advanced Care Plan
Citizens Advice Bureau	This resource has some basic information about “living wills” (that is, Advanced Care Plans).
Health and Disability Commissioner	This resource does the same as the CAB’s resource.

What if I have property located overseas?

Your New Zealand Enduring Power of Attorney is not necessarily valid outside of New Zealand. If you have property overseas, you should make an Enduring Power of Attorney in each country where you have property. You can find some information about different jurisdictions below:

• Australia (NSW, Qd, Vic, WA); and
• United Kingdom (“Lasting Powers of Attorney”, LPA).

The laws in Australia, the United States, and Canada vary by state or province.

To find information about how Enduring Power of Attorney work in the United States, search for “springing power of attorney" and "durable power of attorney" alongside "enduring power of attorney" to understand the differences.

To find information about Enduring Power of Attorney in Canada, search for “continuing power of attorney" as well as "enduring power of attorney" to compare how they work.

Laws in other countries may differ from those in New Zealand, so it’s important to understand these differences before signing any documents.

Changing, suspending and cancelling an Enduring Power of Attorney

Changing an Enduring Power of Attorney

You can change your Enduring Power of Attorney by cancelling your existing Enduring Power of Attorney and making another one. One way to do this is by completing a new Enduring Power of Attorney form.

To cancel your previous Enduring Power of Attorney, you must give your previous attorneys a copy of the new Enduring Power of Attorney. This will let them know that they are no longer able to act as your attorney under the old Enduring Power of Attorney. You need to do this even if you reappoint the same person as your attorney on different terms. (PPPRA, section 95A.)

Suspending an Enduring Power of Attorney

If your attorney begins acting under an Enduring Power of Attorney because you become mentally incapable, but then you recover and regain mental capability, you may “suspend” the Enduring Power of Attorney by writing to your attorney that the power is suspended (PPPRA, section 100A). Suspending the power only stops the attorney from acting now. The Enduring Power of Attorney will kick in again in the future if and when you become mentally incapable again.

You can use this form to help with writing to your attorney to suspend them from acting under your Enduring Power of Attorney. ***[Link to NZLII suspension form].

Cancelling an Enduring Power of Attorney

If you wish only to cancel (“revoke”) your Enduring Power of Attorney without replacing it, you must write to your attorneys and tell them that they no longer have the power to act as your attorney (see PPPRA, section 106A).

You should write to each attorney under the EPA you want to cancel (see PPPRA, section 106A).

You must be mentally capable when you do this, which means you must be able to understand information, think things through, and make decisions for yourself.

You must use this form.***[Link to NZLII cancellation form]

Further Information

A lot of information is contained within the Schedule to the Protection of Personal and Property Rights (Enduring Powers of Attorney Forms and Prescribed Information) Regulations 2008. Here, you can find all the forms you need. However, they are in an inaccessible format.

Helpfully, Te Tari Kaumātua provides additional information and has organised the information in the Schedule into individual, ready-to-use forms:

• Enduring Power of Attorney in relation to personal care and welfare including witness certificate;
• Explanation of Enduring Power of Attorney in relation to personal care and welfare;
• Enduring Power of Attorney in relation to property including witness certificate; and
• Explanation of Enduring Power of Attorney in relation to property.

The explanation forms are designed to help the qualified witness (a lawyer, legal executive, or another approved professional) explain how each type of Enduring Power of Attorney works and make sure you understand it before you sign. However, they are useful if you are thinking of creating an Enduring Power of Attorney.

Information for Next of Kin

Next of kin do not automatically have the same decision-making powers as attorneys. This means that if a close family member becomes mentally incapable and cannot make decisions for themselves, you cannot make decisions for them if you are not their attorney under an Enduring Power of Attorney.

Next of kin only have these powers if they:

• Are appointed an attorney under an Enduring Power of Attorney; or
• Are given powers under a Protection of Personal and Property Rights order

-- Main.JudiEathorneGould - 22 January 2025