Have you ever wondered what happens when you can no longer manage your own affairs?
The Protection of Personal and Property Rights Act 1988 allows you to appoint people you trust to manage your affairs under Enduring Powers of Attorney. These documents come in two forms, one for personal care and welfare and a second for property matters.
In relation to your personal care and welfare, you can only appoint one person at any given time. In relation to your property matters, you can appoint one or more Attorney’s and you can specify whether they can act jointly or jointly and severally, meaning any one of them can act as Attorney on his or her own.
An Enduring Power of Attorney in relation to Property can be created so that it also acts as a general power of attorney and can be used by your Attorneys while you still have mental capacity. Or, you can choose to set it up so that it only comes into effect if you lose mental capacity. However, an Enduring Power of Attorney in relation to Personal Care and Welfare can only ever be activated when you have lost mental capacity. You are presumed to be competent unless an assessment by a registered medical practitioner shows otherwise.
Significant changes were made with the passing of the Protection of Personal and Property Rights Amendment Act 2007 and then in 2016 new standardised forms were introduced. Changes introduced in 2007 included;
- The ability to appoint a Successor Attorney, in the event that the original Attorney is unwilling or unable to act
- You can authorise your attorney to act on certain specified matters or all matters
- The ability to require your attorney to consult with or provide information to specified persons.
- The power to authorise your attorney to ask the court to make or amend your Will
If you have concerns about the Attorney’s you have appointed, while you have mental capacity, you can revoke the Attorney’s appointment. If you have lost mental capacity and a family member or friends are concerned about an Attorney’s actions, the only redress is through the Courts.
If you lose mental capacity and you do not have Enduring Powers of Attorney in place, an application may be made to the Family Court for someone to be appointed as your Welfare Guardian and / or your Property Manager. This is a much more expensive process, both in time and costs. The process must be repeated at regular intervals set by the court, often three yearly. This obviously involves unnecessary ongoing cost.
Enduring Powers of Attorney are a very important estate planning tool and we recommend that everyone should have these valuable documents in place, regardless of age, so that in the event of an unforeseen loss of capacity, your affairs can be managed by someone you trust. At Fleur McDonald Legal we have a specialist team who deal with all aspects of senior law. Contact Fleur McDonald on 423 3541 or by email at fleur@https://fmlegal.co.nz to discuss putting Enduring Powers of Attorney in place.