A Guide to Enduring Powers of Attorney

We often associate estate planning with writing a will, but one of the most practical and often overlooked steps you can take to protect your future is setting up an Enduring Power of Attorney (EPA). Unlike a will, which takes effect after your death, an EPA protects your interests while you’re still alive—especially if you lose the ability to make important decisions for yourself.

But what exactly is an Enduring Power of Attorney, and why should it matter to you? Whether you’re planning ahead or assisting a family member, here’s a clear guide to help you understand how EPAs work and why they are such an essential part of your legal toolkit.

What Is an Enduring Power of Attorney?

An Enduring Power of Attorney is a legal document that gives someone you trust the authority to act on your behalf if you become mentally incapable of managing your own affairs. There are two types of EPAs in New Zealand:

1. Property EPA: Covers decisions about your financial and property matters, such as managing your bank accounts, paying bills or selling property.

2. Personal Care and Welfare EPA: Covers decisions about your health and wellbeing, such as medical treatment, where you live and who can visit you.

The key word is enduring—unlike a general power of attorney, an EPA continues to have effect even after you’ve lost mental capacity. There are also specific powers of attorney, which are rare, and only give an attorney the authority to act on your behalf for a clearly defined task or period of time.

Why Set Up an EPA?

Many people assume their spouse, children, or next of kin can automatically make decisions on their behalf. In reality, without an EPA, even close family members may have to apply to the Family Court to make decisions for you. This can be costly, time-consuming and emotionally difficult—especially when urgent decisions need to be made.

Choosing the Right Attorney

Choosing your attorney is one of the most important decisions you will make when creating an EPA. This person should be someone you trust implicitly—usually a close family member, friend or professional adviser.

For a Property EPA, you can appoint more than one attorney and specify whether they act jointly or separately. This allows for more flexibility and oversight. For a Personal Care and Welfare EPA, however, the law only allows for one attorney at a time.

You can also appoint successor attorneys in case your first choice is unwilling or unable to act when needed.

Setting the Scope of Their Powers

You have the option to tailor the scope of your attorney’s powers. For example, you may limit a Property EPA to only cover certain bank accounts or specify that your attorney can act only once you are assessed as mentally incapable.

For the Personal Care and Welfare EPA, your attorney can only act if you are deemed mentally incapable, as determined by a qualified health practitioner.

You can also include guidance or conditions, such as:

•  Requiring your attorney to consult with certain family members

• Specifying how decisions should be made about your living arrangements

• Outlining your preferences for healthcare or cultural values

A lawyer can help ensure your instructions are legally valid and clearly expressed.

Safeguards and Responsibilities

Attorneys are legally required to act in your best interests and follow the instructions set out in your EPA. They must:

• Keep proper records of financial transactions (for property attorneys)

• Consult with you, as much as possible, even after you lose capacity

• Take into account your wishes, values and any directions in the EPA

There are legal safeguards in place to help prevent abuse or misuse of power. You can also nominate someone to monitor your attorney’s actions, or require them to report to another person.

If concerns do arise, the Family Court can intervene to review or remove an attorney.

When Should You Set Up an EPA?

The best time to set up an EPA is now—while you are still mentally capable of doing so. Mental incapacity can occur suddenly, through illness, injury or the onset of a condition such as dementia. Once capacity is lost, it’s too late to create an EPA.

Having your EPAs in place gives peace of mind that your affairs will be handled according to your wishes, without unnecessary stress for your loved ones.

The Role of Legal Experts

Creating an EPA is more than just filling out a form. A lawyer or authorised legal executive must certify that you understand the implications and are not being pressured into the decision.

A legal expert can:

• Advise on who to appoint and how best to structure your EPAs

• Draft tailored provisions that reflect your values and needs

• Ensure the document meets all legal requirements for validity

They can also assist with reviewing existing EPAs or revoking and updating them as your circumstances change.

Summary

Enduring Powers of Attorney are a vital part of planning for the unexpected. While it can be difficult to think about losing independence, having EPAs in place ensures that your voice is still heard, and your choices respected—even if you are unable to speak for yourself.

At Macalister Mazengarb, our experienced team of property and estate lawyers can guide you through the process with clarity and compassion. Contact our experts Shiree Mackay, Richard Allen, Shannon McEwen and William Swan today to discuss how we can assist with your Enduring Power of Attorney.