Your personal care and welfare

Losing the ability to make your own decisions is an unnerving prospect, but being prepared for a worst-case scenario can provide some peace of mind – which is why you should consider creating an Enduring Power of Attorney (EPA)

There are two types of EPA, one for property and the other for personal care and welfare. This article looks at the latter.

What is a personal care and welfare EPA?

Effectively, it allows you to appoint a trusted party to ensure you’re looked after if you’re incapable of taking care of yourself. They can only make decisions regarding personal care issues specified by you, and there are several things they can’t do, including:

• Dissolve or enter you into a civil union or marriage.
• Make decisions about the adoption of your children.
• Refuse you access to life-saving medical treatment, or treatment that will prevent serious damage to your health.
• Consent to you having any surgery or treatment on your brain to change your behaviour.
• Consent to you being part of a medical experiment (unless it is to save your life, or prevent serious damage to your health).

The EPA only becomes effective if you’re declared mentally unstable by either a relevant health practitioner or the Family Court.

Appointing an attorney

Consider carefully who you’d like to be your attorney. You can only have one attorney and they will be responsible for making decisions about your health and living circumstances when you’re no longer able to, so make it’s sure someone you trust.

They must also be over 20 years old, not bankrupt and be mentally capable. If you wish, you can appoint someone to supervise your attorney and also name anyone you’d like them to consult with before making any decisions about your health.

What are my attorney’s responsibilities?

Your attorney needs to make decisions that protect your interests. They must also comply with any conditions and restrictions included in the EPA and the Protection of Personal and Property Rights Act 1988.

Your attorney must also encourage you to develop the competence to act on your own behalf. If you have given any advance directives, they must follow these (provided they are not prohibited from doing so by law). They may also choose to approach the Family Court to seek further advice on your directives.

If you have a separate property EPA, the parties are required to consult with one another regularly to ensure your interests are not compromised due to any breakdown in their relationship.

Your property attorney must also provide your personal care and welfare attorney access to any funds they need to fulfill their duties, such as your living or medical costs.

Changing or challenging your attorney

You can change or end your EPA at any time provided you are mentally capable. If your attorney becomes bankrupt, mentally incapable, subject to a personal or property court order, or the Family Court revokes their appointment, they lose their power. An EPA also stops if you, or your attorney(s), die.

For a more information about EPAs and what your attorneys can and can’t do, visit: http://superseniors.msd.govt.nz/finance-planning/enduring-power-of-attorney or https://www.justice.govt.nz/family/powers-to-make-decisions/the-court-and-enduring-power-of-attorney-epa.

Please note: this is generalised information only. We recommend you always seek legal and financial advice relevant to your personal circumstances.