Enduring Powers of Attorney – what does it mean to be someone’s attorney?
June 2022
An enduring power of attorney (“EPA”) appoints people to make decisions on your behalf if you lose mental capacity. The person making the EPA is called the “donor”, and the person or people they appoint to make decisions on their behalf are called their “attorney”.
There are two types of EPA – one for ‘personal care and welfare’, and one for ‘property’. An EPA for personal care and welfare covers decisions about the donor’s health and wellbeing, and only takes effect if the donor loses mental capacity. An EPA for property covers decisions about the donor’s money and other assets, and the donor can choose whether it takes effect only if the donor loses mental capacity, or while the donor has mental capacity as well.
It can feel like an honour to be appointed as someone’s attorney, but it is also a big responsibility. If you need help understanding what to do as an attorney we recommend seeking legal advice as early on as possible.
What does being an attorney involve?
In general, your job as an attorney is to make decisions for the donor that are in their best interests and involve them as much as possible in making those decisions. You will also need to follow any specific directions in the EPA, for example consulting with other people or acting with other attorneys.
If you are an attorney for the donor’s personal care and welfare, you will be making decisions about the donor’s health and wellbeing if they lose mental capacity. This could include deciding where they live and what kind of medical care they receive. As an attorney, you cannot make decisions relating to the donor’s marriage or divorce, adoption of children, refuse life-saving medical treatment, or consent to particular types of medical treatment such as electro-convulsive therapy.
If you are appointed as an attorney for the donor’s property, you will be managing the donor’s money and other assets on their behalf. This could include making sure their bills are paid and that their property is maintained. You will need to keep records of all the financial transactions that you make.
When would my role as an attorney start?
If you are an attorney for the donor’s personal care and welfare, you will only need to act if the donor loses mental capacity. A doctor would need to assess the donor to determine whether they have lost mental capacity.
If you are an attorney for the donor’s property, their EPA will specify whether you can act immediately (while the donor still has mental capacity) or only if they lose mental capacity.
If you are named as a “successor attorney” in the EPA, you only need to act if the attorneys appointed before you cannot act.
When does my role as an attorney end?
Your role as attorney could last for many years - especially if the donor loses mental capacity due to an unexpected accident or illness.
While the donor has mental capacity, your role as an attorney can end if:
- You tell the donor you no longer want to be their attorney, and the donor prepares a new EPA; or
- The donor revokes (cancels) or suspends your appointment in writing.
If the donor has lost mental capacity your role as an attorney will only end if the Family Court revokes your appointment. If you want to stop being an attorney and the donor has lost mental capacity we recommend seeking legal advice.
Will I be paid for being an attorney?
In most cases being an attorney is a volunteer role. Unless the EPA specifically says so, you cannot be paid for your time or use the donor’s money or other property for your own benefit.
You can however be reimbursed from the donor’s money for out-of-pocket expenses that you incur in acting as an attorney, such as bank fees, travel costs and professional fees.
Get in touch
If you have questions about being an attorney or would like to prepare your own EPAs you are welcome to get in touch. Our team are happy to help you.
Sarah Simpson-Thomas
sarah.simpson-thomas@tp.co.nz
021 537 278
Hannah Whyte
hannah.whyte@tp.co.nz
027 647 0471
Claire Brownlie
claire.brownlie@tp.co.nz
027 371 4376