Important Terms Explained

When it comes to writing an Enduring Power of Attorney (EPA), you might come across some terms that you haven't heard before. Here are the explanations for some of the most common terms used in a Personal Care and Welfare  EPA.

Act

The Protection of Personal and Property Rights Act 1988Part 9 of the Act sets out the law on EPAs.

Advance Directive

A written or oral directive: by which a person makes a choice about a possible future health care procedure; and that is intended to be effective only when the person is not competent. See the Code of Health and Disability Consumers’ Rights set out in the Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulations 1996.

Attorney

A person or persons appointed by the donor to act on behalf of the donor on some or all of the donor’s personal care and welfare needs. This includes a successor attorney whose appointment has taken effect (unless the context makes it clear that this is not intended).

Authorised Witness

A person who witnesses a donor’s signature to an EPA. The signature must be witnessed by one of the following:

  • a lawyer
  • a legal executive who is a member of, and holds a current annual registration certificate issued by, The New Zealand Institute of Legal Executives Incorporated, has 12 or more months’ experience as a legal executive, and is employed by and supervised by a lawyer
  • an authorised officer or employee of a trustee corporation.

If the attorney is a lawyer appointed in his or her capacity as a lawyer, the witness may belong to the same firm as the attorney. If the attorney is a trustee corporation, the witness may be an officer or employee of that corporation.

In any other case, the witness must be independent of the attorney and any successor attorney named in the EPA.

Where this doesn’t apply

The requirement that the witness must be independent of the attorney is modified where two people appoint each other as attorney in order to allow:

  • the witnesses to belong to the same legal firm or the same trustee corporation
  • the same person to witness both donors’ signatures if the witness is satisfied and certifies that doing so does not constitute more than a negligible risk of conflict of interest.
Capable of making a will

The law requires that anyone making a Will must understand the nature and effect of what they are doing, who might have a claim to their estate, what they are disposing of, and how they are disposing of it. This is called having testamentary capacity. 

Consult

To ask for advice and give that advice proper consideration before making a decision in the donor’s best interests. This includes making sure the person being asked for advice has all the information they need to base their advice on.

Donor

The person setting up the EPA giving the appointed attorney(s) authority to act for them.

Ends

An attorney’s appointment under the EPA ends when any of the following events occurs:

  • the donor (while mentally capable) revokes the attorney’s appointment by written notice to the attorney
  • the attorney gives written notice to the donor (or to the Family Court if the donor is mentally incapable) that the attorney disclaims the right to act under the EPA
  •  the attorney dies or becomes bankrupt
  • the attorney becomes subject to compulsory treatment or special patient status under the Mental Health (Compulsory Assessment and Treatment) Act 1992
  • the Family Court makes a personal or property order under the Act in respect of the attorney
  • the attorney becomes unable to act (for example, because of serious illness)
  • the Family Court makes an order revoking the attorney’s appointment.
EPA

An Enduring Power of Attorney in relation to personal care and welfare made under Part 9 of the Act (unless the context makes it clear that another kind of enduring power of attorney is intended).

Medical certificate

A certificate given by a relevant health practitioner on whether the donor is mentally incapable. The certificate must contain the information required by regulations under the Act.

Mentally incapable

Under the Act, donors are mentally incapable in relation to property if they are not wholly competent to manage their own property affairs. Everyone is presumed to be competent to manage their property affairs until the contrary is shown, and is not to be presumed to lack competence just because the person makes imprudent decisions or is subject to compulsory treatment or has special patient status under the Mental Health (Compulsory Assessment and Treatment) Act 1992.

Out-of-pocket expenses

Things that your attorney needs to pay for from their own resources in order to carry out their role, such as postage and stationery costs, bank fees, travel costs, telephone bills, and legal fees. These expenses do not include lost wages or payment for your attorney’s time.

Prescribed form

A form set out in the Protection of Personal and Property Rights (Enduring Powers of Attorney Forms and Prescribed Information) Regulations 2008.

Personal care and welfare

The donor’s health, well-being, and enjoyment of life, including where the donor lives and medical treatment they may need.

Relevant health practitioner

A health practitioner in New Zealand who is authorised to make assessments of mental capacity, for example, a New Zealand general medical practitioner (GP). In relation to a medical certificate given overseas, a registered medical practitioner in the country where the certificate is issued who is authorised to make assessments of mental capacity.

Revoke

To cancel (end the validity of) an EPA or an attorney’s appointment:

  • by sending a written notice to the attorney stating that the EPA or the appointment is revoked; or
  • by an order of the Family Court.
Successor Attorney

A person appointed by the donor to be their attorney if a previous attorney’s appointment ends.

Suspend

The donor of an EPA who was, but is no longer, mentally incapable may suspend the attorney’s authority to act by giving written notice to the attorney. The EPA is not revoked by the suspension but the attorney cannot act again unless and until a relevant health practitioner has certified, or the court has determined, that the donor is (again) mentally incapable.

Terminated

An EPA is terminated by any of the following events:

  1. the donor (while mentally capable) revokes the EPA by written notice to the attorney
  2.  the donor dies
  3. if the EPA appoints one attorney, the attorney’s appointment ends, and there is no successor attorney who can act
  4. if the EPA appoints more than one attorney to act jointly, the appointment of any of the attorneys ends, and there is no successor attorney who can act
  5. if the EPA appoints more than one attorney to act separately, or jointly and separately, the last remaining attorney’s appointment ends, and there is no successor attorney who can act.
Trustee Corporation

The New Zealand Guardian Trust Company Limited, Māori Trustee, Public Trust, and every trustee company within the meaning of the Trustee Companies Act 1967.