Enduring Powers of Attorney –

the law• Buried in Part 9 Protection of Personal and

Property Rights Act 1988 (PPPR Act)

• Power of attorney - an ordinary or general

power used when you want someone to look

after your affairs for a certain period (eg go

overseas), become invalid once you lose

capacity VS

• Enduring power of attorney – endures from

capacity to losing capacity (s 96)

What is an Enduring Power of

Attorney?

• Created in a legal document

• A ‘Doner’ gives an ‘Attorney’ the power to

make decisions on their behalf if they become

incapacitated or unable to make their own

decisions OR they can’t communicate those

decisions

• You can grant someone that power for care

and welfare and /or property - usually you

make both at the same time

• Anyone over 20

• Not just for older people

• Head injuries, comas, early dementia, early

strokes or other reason

Who should have one?

If no EPA?

• If person does not have capacity:

- There has to be an application to the Courts.

- Court has to appoint a Property Manager and

Welfare Guardian

- Long, expensive process’

- MUCH better to make an EPA prior to

incapacity

How do you get one?

• See a lawyer

• They must write a certificate saying that

you were not unduly influenced etc

• Brought this in because people were doing

them on forms from Whittcoulls

• Keep it in your drawer! No place these are

registered -, that is, with any authority

which is unusual given we register births,

deaths and marriages

How do they work - Property

• Property – can have 1 person or more – to

deal with money, property

• Can be a trustee corporation

• Property Attorney can take over prior to

incapacity – a donor may authorise an

attorney to act in relation to a specific part of

the donor’s affairs or the whole of the

donor’s affairs.

Property Attorney’s duties:• Attorney’s cannot benefit themselves unless

authorised by the donor or the court

• When donor becomes incapacitated, attorney

must promote and protect the donor’s best

interests

• Must consult the donor and other attorney

• The attorney must seek ‘at all times to

encourage the donor to develop the donor’s

competence to manage his or her own affairs’

• Attorney’s must keep records once donor

incapacitated (if not, can be fined up to

$1000)

How do they work - Welfare

• Welfare – can have 1 only but can specify

who they have to consult with

• Person – ‘donor’ is assessed as having lost

mental capacity by health practitioner

• Welfare Attorney then takes over the

decision-making…

• Key point: Unless ‘activated’ an attorney

cannot make decisions on the donors

behalf

Attorney’s duties - Welfare

• Can only be one, can’t be a trustee company

• Must consult the donor as much as they can

• Can make decisions about where donor

lives, medical treatment they receive (if

activated). Check if activated!!!

• Must give due consideration to the impact of

finances when making their decision

• Can’t make decisions about – marriage or

divorce, refuse standard or life-saving

medical treatment, or consent to ECT or

medical experimentation.

Starting Point

• Presumption of competence – ‘until the

contrary is shown’

• A person cannot be presumed to lack

competence just because:

❑they make bad decisions - either in relation to

their property or care and welfare (s 93B) OR

❑they are subject to a Compulsory Treatment

Order under the MH Act

Quiet little document with lots of

Punch• Many legal, ‘personal rights’ that protect our

autonomy as human beings

• Rights in the NZBORA – freedom of

movement, association.

• Common law rights that enable us to deal

with our property as we see fit

• As health consumers (in HDC Code) eg,

informed consent, right to refuse treatment

• An activated EPA cuts across those rights

S 99D

Medical certification of incapacity

A certificate of the donor’s mental incapacity under this Part must—

(a) contain the prescribed information; or

(b) if the certificate is issued outside New Zealand, be in a form

acceptable to the competent authority of the State concerned.

(2) The donor may specify in an enduring power of attorney that the

assessment of his or her mental capacity for the purposes of this Part be

undertaken by a health practitioner with a specified scope of practice, but

only if the scope of practice specified includes the assessment of a

person’s mental capacity.

(3) The cost of any medical assessment or examination reasonably

required for the purpose of certifying whether the donor is mentally

incapable under this Part is recoverable as a debt from the donor’s

property.

Prescribed information?

• Notoriously difficult to find, doctors (and many

lawyers) don’t generally know about it, you

can help them!

• Protection of Personal and Property Rights

(Enduring Powers of Attorney Forms and

Prescribed Information) Amendment

Regulations 2017

• http://www.legislation.govt.nz/regulation/publi

c/2017/0044/latest/whole.html#d56e31

Capacity Tests in law:

• Very clumsy as law can be blunt but there has

to be a legal test

• Property:

‘the donor is mentally incapable because he or she is not

wholly competent to manage his or her own affairs in

relation to his or her property’

• Welfare:(i) that the donor lacks the capacity to make a decision

about a matter relating to the donor’s personal care and welfare

in respect of which a decision is made, or is proposed to be

made:

• (ii) that the donor lacks the capacity to understand the nature of

decisions about a matter relating to the donor’s personal care

and welfare in respect of which a decision is made, or is

proposed to be made:

• (iii) that the donor lacks the capacity to foresee the

consequences of decisions about a matter relating to the

donor’s personal care and welfare in respect of which a decision

is made, or is proposed to be made, or to foresee the

consequences of any failure to make such decisions:

• (iv) that the donor lacks capacity to communicate decisions

about a matter relating to the donor’s personal care and welfare

in respect of which a decision is made, or is proposed to be

made.

Misuse of EPAs

• EPA not activated but attorney assumes

power to make decisions

• Presumption of competence requires you to

inform patient and gain as much consent as

you think a person can understand

Watch for signs of abuse

• Many situations where EPA made (ie have

capacity), then next day or week – get a

certificate to say they don’t have capacity

• Check when an EPA was made (if there is

one) and if it was yesterday – question that!

• Watch for signs of undue influence or

pressure (or bullying!)

Warning!• You may be asked to be a power of attorney for

a client (or former client) – property or welfare

• Politely decline – say I have a policy where I

never do that for clients

• Conflict of interest, plus seen to be ‘gaining a

benefit’ from your relationship

• Would probably be a boundary violation

• Code of Conduct (SWRB) – Principle 1, 1.6

states you need to decline a request

Case of the OT

• PCC v Schlotjes HPDT 446/OT11/187P (2012

case)

• Esme Schlotjes, an occupational therapist in

Raumati was found guilty of professional

misconduct for accepting an enduring power

of attorney for a former client

• Very nearly struck off the OT register (after 30

years in practice)

Facts of case• Esme was client’s community OT for a year

(2004-2005)

• In 2006 the client’s daughter (who often went

to Oz) asked her if Esme would be her fathers

alternative EPA and was told she ‘would be

well rewarded for stepping into this role’

• Esme agreed to be both EPA for property and

care and welfare

• Despite professional relationship had ended

Tribunal found her guilty and fined her $5000

along with an order for costs of $20,000

Review of Attorney’s decisions

• If the property attorney is not managing the

affairs properly or the welfare attorney doesn’t

seem to make good decisions can apply to

Family Ct for a review

• A medical practitioner, social worker, relative,

residential care facility or any other person

with leave of Court can apply for a review

• Family Ct can: monitor, change the terms of

role, give directions or revoke it

Future work for social workers

• Cost barrier for getting an EPA – Public Trust

charge $289 for each property and welfare

(total $578) . A Will costs between $289-

$499. But issue with Public Trust! (Privacy

over Safety – but Principle 11(a) applies)

• ANZASW could lobby MSD for interest free

(recoverable) loans to be provided

• No National register – this needs to be set up

– could be held with IRD or WINZ