By Kate Webster - 25 Oct 2022
In New Zealand, the Protection of
Personal and Property Rights Act 1988 (PPPR Act)
provides that anyone who wants to put an enduring power of attorney
in place (i.e. a "donor") has to be independently
advised by a lawyer, who must certify that the donor fully
understands the nature and effect of the enduring power of
attorney.
However, a person who is appointed as
an attorney often receives little advice as to how they should
carry out their role.
If you have been appointed as an attorney under an enduring
power of attorney (EPA), there are a few legal
obligations you should be aware of. It is important that you adhere
to these obligations at all times when acting on behalf of the
donor who has appointed you, as there are consequences if you
don't. The first port of call you should look to are the EPA
documents themselves, as the donor may stipulate conditions that
you have to follow or put restrictions on your ability to act.
The PPPR Act then sets out the following obligations:
EPA for Property
You must:
- Encourage the donor to develop their competence to manage
and be involved in their own property affairs.
- Use the donor's property to promote and protect the donor's
best interests.
- Keep the donor's money and property separate from your own and
be able to account for it. Specifically, you must keep records of
each financial transaction that you enter into as attorney while
the donor is mentally incapable. It is an offence not to do
so.
- Not act to benefit yourself or any other
person other than the donor, unless the donor has specified
so in the EPA.
- Consult with the donor, and any other attorney named in the
document (apart from successor attorneys) and the attorney for
personal care & welfare.
EPA for Personal Care & Welfare
You must:
- Promote and protect the welfare and best interests of the
donor, while encouraging the donor to communicate their wishes and
act on their own behalf where they can.
- Assist in the integration of the donor into the community to
the greatest extent possible (e.g., ensuring they keep in contact
with friends and family, and continuing to take them to any
community clubs or events that they usually go to).
- Consider the financial implications to the donor's property
when making decisions relating to their personal care.
- Consult with the donor, and the attorney(s) for property (apart
from successor attorneys).
You may:
- Act in respect of a significant matter relating to the donor's
personal care & welfare only once
a health practitioner has certified that the donor is mentally
incapable. A significant matter may include a permanent
change in the donor's residence, entering residential care or
undergoing a major medical procedure.
- Act in respect of any other matter relating to
the donor's personal care and welfare if you believe on reasonable
grounds that the donor is mentally incapable.
Going to Court
You may seek directions from the Court if you are unsure about
anything - for example, whether or not to make a specific decision,
or if another attorney disagrees with your decision.
Additionally, certain people (including relatives, doctors,
managers of rest homes, social workers and any other person the
Court gives leave to) can ask the Court to review your actions and
decisions you have made as an attorney. The Court can make any
order they see fit, including revoking your appointment as attorney
or imposing a fine. This is why it is important to make sure you
are aware of and adhering to all of your obligations listed
above.
Summary
If you have been appointed as an attorney and have questions
about your obligations, or if you have concerns about the actions
of a person acting as an attorney, please contact Kate or any
member of our
private client team for assistance.
Contact
Kate
Webster