More Powere Of Attorney Protection Welcomed
News Release 25 September 2008
More Protection For People Making Enduring Powers Of Attorney Welcomed By Public Trust
More protection for people with an Enduring Power of Attorney is very welcome, says Public Trust. Tomorrow (26 September), the Protection of Personal and Property Rights Amendment Act 2007 comes into force which brings changes to Enduring Powers of Attorney.
Public Trust chief executive Grenville Gaskell says, “We’re very pleased that these changes have been made. It means that people setting up an Enduring Power of Attorney will be better informed, and there will be more communication than before. People granted the power will be more accountable as they will have to consult more, keep clearer financial records, and always act in a person’s best interests.”
An Enduring Power of Attorney is a legal document where you specify who will make decisions on your behalf if you’re incapacitated permanently or temporarily from illness or accident.
“The changes were mainly brought about because of concerns over financial abuse, especially with the elderly,” says Mr Gaskell. “Previously there were cases where the person appointing an attorney didn’t have the capacity to sign, or there was no requirement for people to get independent legal advice before signing. There were also cases of neglect and abuse by the person acting as attorney – for example they did not spend money on care because it could affect an inheritance,” he says.
It is hoped that with the changes to the law this is much less likely. People can now only sign an Enduring Power of Attorney while a lawyer or trust officer is present. To help avoid issues that arose previously, they must certify that people are capable and that everything’s been explained properly and also that they’re independent of the people being appointed as an attorney.
Public Trust says that if you have an existing Enduring Power of Attorney it remains a legally valid document and you don’t have to make any changes. However, if the person acting as your attorney doesn’t wish to continue in their role due to the increased workload they may now have, or if you have had any major life changes such as a separation or divorce, it may be time for an update. They also recommend that people making any changes or updates to their Will, set up an Enduring Power of Attorney at the same time.
“Wills and Enduring Powers of Attorney go hand-in-hand, and at Public Trust we want to make sure we look after the best interests of our customers in case the unexpected happens,” says Mr Gaskell.
Working with New Zealanders for 135 years, Public Trust is New Zealand’s largest and most established trustee organisation. Every year Public Trust prepares more than 23,000 Wills and 17,000 Enduring Powers of Attorney. Public Trust’s services also include estate administration, family trusts, pre-paid funeral trusts, education and inheritance trusts, charitable trusts, savings and investments, lending and insurance.
Public Trust has 35
customer centres; 27 in the North Island, including seven in
the greater Auckland region, and eight in the South Island.
ENDURING POWER OF ATTORNEY: BACKGROUND
An Enduring Power of Attorney (EPA) is a document that sets out a person’s wishes if they, for any reason, become unable to manage their own affairs.
A spouse, parent or next-of-kin cannot legally make decisions on behalf of an incapacitated relative without that person’s specific authorisation. For this reason alone an EPA is really important.
If there is no EPA, under the Protection of Personal and Property Rights Act 1988 and the Amendment Act 2007, the Family Court has the ability to appoint someone to take care of a person’s affairs, and make important decisions about their care and property. These decisions may not be what the person wanted. The Amendment Act is effective from 26 September 2008.
TYPES OF ENDURING POWER
There are two types of Enduring Power of Attorney. The first type of EPA is for Property, which allows the appointment of an attorney who acts on behalf of an individual regarding their financial matters. You can appoint someone over 20 years of age, or Public Trust to be your attorney.
You specify how much control you want your attorney to have. You also decide when you want your property EPA to come into effect – immediately or simply when you need it. This type of EPA can even be used if you are going away for a while and you want someone to manage your assets. A person can cancel or change the conditions of their property EPA at any time, providing they are able to make their own decisions. Public Trust recommends that EPAs should be reviewed regularly to ensure they remain relevant.
The second type of EPA relates to Personal Care and Welfare. An individual appoints someone to make the decisions regarding their care and welfare if they become unable to make their own decisions because of a serious accident, old age, or illness. Incapacity must be confirmed by a health practitioner before the appointed attorney begins making decisions.
A Personal Care and Welfare Attorney must be over 20 years old. The attorney will make personal decisions; regarding an individual’s health and other personal matters, for a potentially long time. They will have the right to make decisions such as where the person will live and with whom; and provide consent for minor operations and medical care. They could even have a say about a person’s diet. For these reasons it is important that the attorney appointed is someone trustworthy.