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What to do if you’ve been appointed as an attorney under an Enduring Power of Attorney

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:

  1. Encourage the donor to develop their competence to manage and be involved in their own property affairs.
  2. Use the donor's property to promote and protect the donor's best interests.
  3. 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.
  4. Not act to benefit yourself or any other person other than the donor, unless the donor has specified so in the EPA.
  5. 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:

  1. 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.
  2. 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).
  3. Consider the financial implications to the donor's property when making decisions relating to their personal care.
  4. Consult with the donor, and the attorney(s) for property (apart from successor attorneys).

You may:

  1. 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.
  2. 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

 

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