You can choose how you want your EPA to work
By getting a personal care and welfare EPA, you (the donor) appoint a chosen attorney and authorise them to make decisions about your personal care and welfare if you become mentally incapable.
You can appoint only one personal care and welfare attorney, but you can appoint a successor attorney to be your attorney, if the previous attorney is no longer able to act. You can appoint more than one successor attorney. If you wish to appoint more than one successor attorneys, please contact us for advice.
You can personalise your EPA by:
- Appointing a successor attorney;
- Cancelling (revoking) previous EPAs;
- Limiting your attorney’s authority to act; and
- Specifying who they must consult with.
- Saying who you want your attorney to inform about how they are carrying out their EPA duties
You can choose anyone you trust to be your attorney
Your attorney can be anyone you trust (friend, family, work colleague) who:
- Is at least 20 years old;
- Isn’t bankrupt; and
- Isn’t mentally incapable;
- Understands and respects your wishes and feelings. Ideally lives in the same area as you (to make taking care of your needs easier).
You need to do certain things to complete your EPA
- Your EPA needs to be signed and witnessed in the presence of one of Perpetual Guardian’s qualified staff members at a branch near you. They will explain the effects and implications of the EPA and answer any questions. Find out more about our relationship with Perpetual Guardian here.
- You need an additional person to witness the signature of each attorney (and successor attorney) you appoint. This cannot be done by you or your witness.
- Whoever you choose as a witness must be an adult and should not be a relative of the attorney, the attorney’s spouse or partner, or live at the same address as the attorney.
- Your EPA will not be valid until it is signed by all parties (you, your attorney(s), successor attorney and witnesses). This includes you and your attorney.
Your attorney must follow certain laws
- Your attorney’s authority is governed by both the EPA and the Protection of Personal and Property Rights Act 1988(the Act).
- Your attorneys and successor attorneys should ask a lawyer for legal advice on their role if they are unclear about anything.
Your Personal Care and Welfare EPA only comes into effect if you become mentally incapable
- Your attorney can only act under the EPA if you become mentally incapable.
- They can only act or make a decision on significant matter about your personal care and welfare if a medical certificate states, or the Family Court decides, that you are mentally incapable.
- If they have reasonable grounds to believe you’re mentally incapable, they can act and make decisions without a medical certificate on anything that isn’t considered significant.
Your mental capacity must be assessed both:
- At the time your attorney proposes to make or makes a decision on a matter; and
- In relation to the matter concerned.
- If a medical certificate states you’re mentally incapable because of a prolonged or indefinitely-continued health condition, no further medical certificates are required during the certified period.
There are some circumstances that will stop your attorney being able to act
Your attorney can’t act after:
- They receive notice from you that the EPA is terminated;
- Their appointment is ended (see ‘important terms explained LINK); or
- Their authority to act is suspended (see note 20).
Your attorney has certain responsibilities
Your attorney must always promote and protect your welfare and best interests. This includes:
- Encouraging you to make and communicate your own decisions about your personal care and welfare, and to understand how decisions will affect you;
- Encouraging you to act on your own behalf where possible and remain part of your community
- Seeking your advice when making decisions,
- Consulting anyone else named in your EPA for that purpose and any attorney acting under any other EPA you have given (except a successor attorney whose appointment isn’t in effect).
- Taking into account the financial implications of any decision about your personal care and welfare.
- If they act in good faith and with reasonable care, your attorney may follow any advice received through consultation or in a prior instruction by you, unless it is something listed in ‘what your attorney can’t do’.
- If you’ve named someone in your EPA to have access to information, your attorney must give them that information when asked.
What to consider if you also have a Property EPA
- If you’ve appointed someone else to be your property attorney, both attorneys must regularly consult each other to ensure your interests aren’t negatively affected.
- Your property attorney should provide your personal care and welfare attorney with any financial support (out of your property) needed for your personal care and welfare.
What your attorney can’t do:
- Decide whether you should marry or enter into a civil union;
- Decide if your marriage or civil union should be dissolved;
- Decide if any of your children should be adopted;
- Refuse consent to any standard medical treatment or procedure intended to save your life or prevent serious damage to your health;
- Consent to you receiving electro-convulsive treatment (ECT);
- Consent to any brain surgery or treatment designed to change your behaviour; or
- Consent to you taking part in any medical experiment except for the purpose of saving your life or preventing serious damage to your health.
You can cancel your EPA at any time while you are mentally capable
- You can cancel (revoke) your EPA or an attorney’s or successor attorney’s appointment anytime, while you are mentally capable, through writing notice.
- If you don’t give notice of revocation to previous attorneys, providing a copy of this EPA counts as notice.
- If you become mentally incapable but then recover your mental capacity, you can suspend your attorney’s authority to act by giving them written notice. Your attorney won’t be able to act under your EPA unless a medical certificate states, or the Family Court declares, that you are mentally incapable again.
- If you’re mentally incapable and your attorney’s authority is questioned, they can certify they’re allowed to act on your behalf on a prescribed form available on the Ministry of Justice website. This means they can continue to act as your attorney. In the case of trustee corporations, they can provide a Certificate of Administration under the Trustee Companies Act 1967.
Your attorney can apply to The Family Court for help or to sign a Will for you
- If you or someone else is concerned about your attorney, an application to the Family Court can help with reviewing their actions. The Court must appoint a lawyer to represent your interests.
- Your attorney may apply to the Family Court for directions if they aren’t sure what to do (for example, when consultation has resulted in conflicting advice).
- Unless you have expressly stated otherwise in your EPA, your attorney can apply to the Family Court for authorisation to sign a Will for you (in a form approved by the Court) if you’re incapable of making a Will.
- Any matter involving the Family Court requires an application to the Court. The application form can be found at the Ministry of Justice website.