Enduring Power of Attorney in New Zealand

An Enduring Power of Attorney (EPA) appoints someone you trust to make decisions for you if you lose mental capacity. Without one, your family may need to go through an expensive court process.

Types of EPA

1. EPA for Personal Care & Welfare

Covers decisions about:

  • Medical treatment - Surgery, procedures, medications
  • Living arrangements - Where you live, care facilities
  • Personal wellbeing - Daily activities, social needs
  • Healthcare providers - Doctors, specialists, care workers

Only activates if you become mentally incapable.

Cannot cover:

  • Financial decisions
  • Property matters
  • Business transactions

Your attorney can:

  • Consent to or refuse medical treatment
  • Choose care providers
  • Decide living arrangements
  • Access medical information
  • Make day-to-day care decisions

Cannot:

  • Make decisions about marriage
  • Make decisions about adoption
  • Refuse basic care
  • Act against your known wishes

2. EPA for Property

Covers:

  • Bills - Utilities, rates, insurance
  • Bank accounts - Deposits, withdrawals, transfers
  • Investments - Buying, selling, managing
  • Property decisions - Buying, selling, renting, maintenance

Can begin:

  • Immediately when signed, or
  • Only when you lose capacity

Most people choose “immediately” for flexibility.

Your attorney can:

  • Pay your bills
  • Manage bank accounts
  • Handle investments
  • Deal with property
  • Run your business
  • Handle legal matters

Must:

  • Act in your best interests
  • Keep proper records
  • Avoid conflicts of interest
  • Keep your property separate from theirs

Why EPAs Are Essential

Protect Your Finances

Without EPA:

  • No one can access your accounts
  • Bills go unpaid
  • Investments unmanaged
  • Property at risk

With EPA:

  • Attorney manages immediately
  • Financial continuity
  • Assets protected
  • Business continues

Remove Stress from Family

Court process without EPA:

  • Application to Family Court
  • Expensive ($5,000-$15,000+)
  • Time-consuming (6-12 months)
  • Stressful for family
  • Public process

With EPA:

  • Attorney acts immediately
  • No court needed
  • Private
  • Cost effective
  • Less stress

Ensure Your Medical Wishes Are Followed

Without EPA:

  • Family has to guess
  • Doctors decide
  • Potential conflicts
  • Your wishes unknown

With EPA:

  • Attorney knows your wishes
  • Advocates for you
  • Makes informed decisions
  • Follows your values

Avoid Court-Appointed Managers

Court-appointed manager:

  • May be stranger
  • Doesn’t know your wishes
  • Limited powers
  • Ongoing court supervision
  • Expensive
  • Delays

Your chosen attorney:

  • Someone you trust
  • Knows your values
  • Acts immediately
  • Broader powers
  • Cost effective

Who Should Be Your Attorney?

Essential Qualities

Trustworthy:

  • Honest and reliable
  • Acts in your interests
  • Respects your wishes

Capable:

  • Organized
  • Good with money (for property EPA)
  • Makes good decisions
  • Handles responsibility

Available:

  • Lives nearby (ideally)
  • Has time to commit
  • Will be around when needed
  • Willing to serve

Understands you:

  • Knows your values
  • Understands your wishes
  • Respects your beliefs

Common Choices

Spouse/partner: Most common

  • Knows you well
  • Usually trustworthy
  • Convenient

But consider:

  • What if they’re also incapacitated?
  • May be too emotionally involved
  • Always appoint backup

Adult children:

  • Next generation
  • Invested in your wellbeing
  • Available long-term

But consider:

  • Sibling conflicts
  • Financial capability
  • Emotional burden

Trusted family member or friend:

  • Independent perspective
  • May have relevant expertise
  • Less emotional involvement

Professional:

  • Lawyer
  • Accountant
  • Trustee company

Pros: Expertise, objectivity Cons: Cost, less personal

Multiple Attorneys

Can appoint:

  • Joint attorneys (must act together)
  • Joint and several (can act separately or together)
  • Successive attorneys (one after another)

Joint:

  • Both must agree
  • Provides oversight
  • Prevents abuse
  • But can cause delays

Joint and several:

  • Either can act alone
  • More flexible
  • Faster decisions
  • But less oversight

Recommendation: Joint and several with two trusted people.

How to Set Up an EPA

Step 1: Choose Your Attorney(s)

  • Primary attorney
  • Alternate attorney (backup)
  • Discuss with them first
  • Confirm they’re willing

Step 2: Complete EPA Form

Use prescribed form:

  • Different forms for Personal Care and Property
  • Available from lawyer or online
  • Must use correct legal form

Information needed:

  • Your details
  • Attorney details
  • When EPA starts (for property)
  • Any conditions or restrictions
  • Your wishes and preferences

Step 3: Discuss Your Wishes

With your attorney:

  • Medical treatment preferences
  • End-of-life wishes
  • Living arrangements
  • Financial management
  • Special instructions

Document:

  • In EPA form
  • Separate statement of wishes
  • Letter to attorney

Step 4: Sign Before Witness

Signing requirements:

  • You sign first
  • One independent witness
  • Witness must be 18+
  • Witness cannot be attorney or their spouse

Witness must:

  • Watch you sign
  • Sign themselves
  • Confirm you appear to understand

Step 5: Attorney Accepts

Attorney must:

  • Sign acceptance
  • Acknowledge duties
  • Confirm understanding
  • Before witness

Same witnessing requirements.

Step 6: Lawyer Certifies (Property EPA Only)

Property EPA requires:

  • Lawyer certificate
  • Lawyer explains EPA to you
  • Lawyer assesses capacity
  • Lawyer signs certificate

Personal Care EPA: No lawyer certificate needed.

Step 7: Store Safely

Keep originals:

  • Safe place at home
  • With your lawyer
  • Trustee company vault

Copies to:

  • Attorney
  • Doctor
  • Family members
  • Lawyer
  • Accountant

Register: Optional public register available.

When EPA Activates

Property EPA

Starts:

  • Immediately (if you chose this), or
  • When you lose capacity (if you chose this)

You choose when drafting.

Most people choose “immediately”:

  • Flexibility
  • Attorney can help anytime
  • You still control while capable
  • Seamless transition if incapacitated

Personal Care EPA

Only starts when:

  • You become mentally incapable
  • Medical professional certifies incapacity
  • Cannot make own care decisions

Does not activate:

  • Just because you’re ill
  • Temporary incapacity
  • Physical disability only

You retain control until actually incapable.

Attorney Duties and Obligations

Must Act in Your Best Interests

Not their interests:

  • Your welfare paramount
  • Your wishes followed
  • Your values respected

Keep Proper Records

Property attorney must:

  • Record all transactions
  • Keep receipts
  • Maintain accounts
  • Provide accounting if requested

Avoid Conflicts of Interest

Cannot:

  • Use your property for their benefit
  • Lend your money to themselves
  • Mix your property with theirs
  • Benefit personally (unless EPA allows)

Consult You If Possible

If you have some capacity:

  • Involve you in decisions
  • Respect your wishes
  • Explain what they’re doing

Act According to Your Wishes

Follow:

  • Written instructions in EPA
  • Discussions you’ve had
  • Your known values
  • Sound judgment if unclear

Costs

EPA setup:

  • DIY forms: $0 (but risky)
  • Lawyer-assisted: $200-$400 each
  • Both EPAs together: $350-$600
  • Often bundled with will

Lawyer certificate (Property EPA): Included in setup fee.

Annual costs: None (unless professional attorney).

Professional attorney fees:

  • Hourly rates if activated
  • Percentage of assets under management
  • Or annual retainer

Revoking or Changing EPA

Can Revoke Anytime

While you have capacity:

  • Destroy original
  • Sign revocation form
  • Notify attorney
  • Notify relevant parties

Cannot revoke:

  • Once you lose capacity
  • Only court can revoke then

Making Changes

Cannot amend EPA:

  • Must revoke and create new one
  • Or make additional EPA
  • Cannot just cross out and change

Automatic Revocation

EPA revoked if:

  • Attorney dies
  • Attorney becomes bankrupt (property EPA)
  • Attorney loses capacity
  • Attorney is your spouse and you separate (unless EPA states otherwise)

Safeguards and Protection

Attorney legally obligated:

  • Act in your interests
  • Follow the law
  • Keep records
  • Avoid conflicts

Court Oversight

Court can:

  • Review attorney actions
  • Remove attorney
  • Require accounting
  • Order compensation

Criminal Offenses

Attorney commits crime if:

  • Dishonest use of EPA
  • Theft
  • Fraud
  • Failure to provide necessaries

Penalties: Fines and imprisonment.

Family Protection

Family can:

  • Apply to court if concerns
  • Request accounting
  • Seek attorney removal
  • Report to police if abuse

FAQs — EPA NZ

Who should I choose as attorney?

Recommended choice:

  • Someone you trust completely
  • Capable and organized
  • Understands your values
  • Available and willing

Often: Spouse, adult child, trusted family member, or professional.

Always appoint alternates in case primary cannot act.

Can I have multiple attorneys?

Yes:

  • Joint - must act together
  • Joint and several - can act separately or together
  • Successive - one after another if first cannot act

Recommendation: Joint and several for flexibility with oversight.

When does an EPA activate?

Personal Care EPA: Only when you lose mental capacity.

Property EPA: Your choice:

  • Immediately when signed, or
  • When you lose capacity

Most choose immediately for flexibility.

Do EPAs need renewing?

No:

  • Valid until revoked
  • No expiry date
  • No renewal needed

But review:

  • Every 3-5 years
  • After major life changes
  • If attorney circumstances change

Should I create EPAs and a will together?

Yes, highly recommended:

  • Complementary documents
  • Coordinated planning
  • Often bundled pricing
  • Comprehensive protection

EPA: Protects during lifetime Will: Directs after death

What’s the difference between EPA and will?

EPA:

  • Operates during your lifetime
  • Activates if incapacitated
  • Attorney makes decisions for you
  • Ends at your death

Will:

  • Operates after your death
  • Executor distributes assets
  • Beneficiaries receive property

Need both for complete protection.

Can my attorney make a will for me?

No:

  • Wills must be made with capacity
  • EPA does not extend to making wills
  • Court might order will in extreme cases

Make will while capable.

What if I don’t have EPA and become incapacitated?

Family must apply to court for:

  • Welfare guardian (for personal care)
  • Property manager (for financial)

Process:

  • Expensive ($5,000-$15,000+)
  • Time-consuming (6-12 months)
  • Stressful
  • Public
  • Ongoing court supervision

EPA avoids this completely.

Can I cancel my EPA?

Yes, while you have capacity:

  1. Complete revocation form
  2. Destroy original EPA
  3. Notify attorney
  4. Notify doctors, bank, etc.
  5. Create new EPA if desired

Cannot cancel once incapacitated.

How do I know my attorney won’t abuse their power?

Protections:

  • Choose trustworthy person
  • Appoint joint attorneys
  • Give clear instructions
  • Family can monitor
  • Court can intervene
  • Criminal penalties for abuse

Red flags:

  • Sudden large withdrawals
  • Property sold without reason
  • Attorney benefits personally
  • Care not being provided

Family should stay involved.

Do I need lawyer to set up EPA?

Personal Care EPA:

  • No lawyer required
  • But recommended for advice

Property EPA:

  • Lawyer certificate required
  • Lawyer must explain EPA
  • Lawyer assesses capacity
  • Ensures you understand

Cost: $200-$400 per EPA, worth it for validity.

What if my attorney makes bad decisions?

Options:

  • Discuss with attorney (if you’re capable)
  • Family can apply to court
  • Court can review decisions
  • Court can remove attorney
  • Court can order compensation

Attorney must:

  • Act reasonably
  • Keep records
  • Be accountable