Enduring Power of Attorney (EPA): Complete Guide

An enduring power of attorney is a legal document under the Protection of Personal and Property Rights Act 1988. In it, you (the donor) appoint one or more people (your attorneys) to make decisions on your behalf.

It's called enduring because it keeps working if you lose the mental capacity to make decisions. An ordinary power of attorney, often used for a single transaction or while someone is overseas, stops working at exactly that point.

EPA for property

Covers your money and assets: bank accounts, savings, KiwiSaver, shares, vehicles, your home and any rental property, and businesses. You can appoint one or more attorneys and choose whether they act together or separately. You also choose when it starts: as soon as it's made, at a later time, or only if a suitably qualified medical practitioner decides you can't manage your property.

EPA for personal care and welfare

Covers your health and wellbeing: where you live, who you live with, your carers and your medical treatment. You can appoint only one attorney, plus one successor (back-up) attorney. It only takes effect once a suitably qualified medical practitioner assesses that you can't make or communicate these decisions and gives a medical certificate.

Your signature must be witnessed by a lawyer, a qualified legal executive, or an authorised officer or employee of a trustee corporation. Before you sign, they explain what the EPA means and answer your questions. They must be independent of your attorneys; the exception is when your attorney is a lawyer acting professionally, in which case the witness can be from the same firm.

Each attorney signs separately, in front of a different adult witness: someone other than you or your witness.

Once you've decided who your attorneys will be, most of the work is done with your lawyer or legal executive.

An attorney must be at least 20 years old, must not be bankrupt, and must not be subject to a Family Court personal or property order. Many people choose a partner, adult child or close friend.

Think about who will act in your interests, cope with paperwork, and work well with the rest of your family. Your property attorneys must also give your personal care and welfare attorney the money they need to look after you, so it helps if they get on.

Some decisions stay with you, or with the courts, no matter what your EPA says. An attorney can't make decisions about your marriage, separation or divorce, or about adopting your children. They also can't approve brain surgery or treatment to change your behaviour such as ECT, stop you receiving standard medical treatment that could save your life or prevent serious harm, or agree to you joining a medical experiment unless it might save your life or prevent serious damage to your health.

An attorney must allow CPR. If you don't want CPR in some situations, you need a separate advance directive, which you also make while you're mentally capable.

If you lose capacity without an EPA, nobody automatically has the right to manage your affairs, not even your partner or children. Your family can apply to the Family Court to have someone appointed as your property manager, or as your welfare guardian for care decisions. The court decides who is appointed, what they can do and how long the appointment lasts.

That takes time and effort at an already difficult moment, and the person appointed may not be who you would have chosen.

While you're mentally capable you can change, replace or cancel your EPA at any time, by giving written notice to your attorneys and successor attorneys. If you lose capacity and later regain it, a suitably qualified medical practitioner needs to assess that you have before you can make changes.