You can choose how you want your EPA to work
- By getting an EPA, you (the donor) appoint a chosen attorney and authorise them to make decisions about your property affairs (e.g. your house, credit card payments, etc.) on your behalf.
- An attorney usually acts only when you are mentally incapable, unless you authorise them to act while you are mentally capable.
- You can personalise your EPA by:
- Choosing your successor attorneys,
- Cancelling (revoking) previous EPAs,
- Limiting your attorney’s authority to act,
- Specifying who they must consult with,
- Saying who you want your attorney to inform about how they are carrying out their EPA duties,
- Authorising your attorney to provide celebratory gifts,
- Authorising your attorney to apply to the Family Court to sign your Will,
- Authorising your attorney to set out whether a property attorney, or another person, should benefit financially from your EPA.
You can choose if you want your EPA to come in if you are mentally capable or mentally incapable
- You can choose that your EPA only comes into effect if you become mentally incapable. Only a medical certificate or a Family Court decision can prove you’re mentally incapable.
- If you want your EPA to be effective while you are mentally capable, your attorney can act under it as soon as it’s signed and witnessed. They will also act if you become mentally incapable.
You can choose anyone you trust to be your attorney
- You can appoint more than one attorney (please get in touch with us if you would like advice on this). You can also appoint a successor attorney to act on your behalf when your first choice becomes unable to.
- Your attorney can be anyone you trust (trustee corporation, friend, family, colleague, etc.) who is:
- over 20 years old,
- not mentally incapable,
- not bankrupt
You need to do certain things to complete your EPA
- Your EPA needs to be signed and witnessed in the presence 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 by clicking 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)[ES2] . This includes you and your attorney.
Your attorney must follow certain laws
- An 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.
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'), or their authority to act is suspended (see note 18).
Your attorney has certain responsibilities
Your attorney must:
- Always promote and protect your best interests
- Encourage you to develop or maintain the capabilities to manage your property affairs, wherever possible. As far as practical, before they make decisions on your behalf, they should consult you and any other attorneys you have under another EPA (except for the successor attorney). They should also consult any people you may have asked to be involved.
- If they act in good faith and with reasonable care, your attorney is entitled to follow advice after consulting with others. They can also apply to the Family Court for directions on how to act (e.g. if they receive conflicting advice).
- If you have appointed someone else to be your Personal Care and Welfare attorney, your attorneys must regularly consult each other.
- Your Property attorney should provide your Personal Care and Welfare attorney with any financial support (from your property) that they need for you, for example to cover the costs of any treatment or private care.
- If you have named someone in your EPA to have access to information, including records of financial transactions, your attorney must give them that information when asked.
Your attorney can do certain things with your financial affairs under an EPA
- Unless you have explicitly stated otherwise, your attorney must only act to benefit you.
- Unless you have stated otherwise in your EPA, your attorney can do the following with your property:
- Recover reasonable out-of-pocket expenses (travel costs, accommodation, etc.).
- Recover reasonable professional fees and expenses (e.g. legal or accounting fees). This is if your attorney has accepted appointment or done work related to your property in a professional capacity.
- Deal with any property you and your attorney jointly own if you are married, in a civil union, in a de facto relationship, or are living together, and sharing your incomes.
- Make a loan, advance, or other investment of your property that a trustee could make under the Trustee Act 1956.
- If you have authorised your attorney to make celebratory gifts or donations, your attorney must decide if you can afford to make them with your overall financial circumstances and commitments in mind.
Your attorney must keep records of everything they do on your behalf
- Your attorney must keep records of each financial transaction they enter into on your behalf. They can be prosecuted and fined if they don’t.
- If an application is made to the Family Court under the Act about you or your EPA, your attorney must supply these records on request to the lawyer (if any) appointed by the court to represent your interests.
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, by giving notice to them. 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.