Planning Today to Protect Tomorrow Series
A look at the recent changes to Enduring Powers of Attorney and what those changes mean for you.
For a brief overview of what an Enduring Power of Attorney and to view the new forms click here.
The best intentions are the ones achieved. If you are anything like me you will have many good intentions but often in the busyness of life they are forgotten until the moment has passed and it is too late or your goal is harder to achieve. I intend to go to the gym but before I know it weeks have passed because there are so many other things to do. Now achieving my fitness goals are that much more difficult.
Our legal intentions are no different. At our firm many people come to see us, usually accompanied by a well-meaning and concerned son or daughter, to tackle Enduring Powers of Attorney (“EPOAs”). Oftentimes those people have left it too late and no longer have the mental capacity required to instruct us. Their children are directed to the Family Court and the process to apply to be appointed as their parent’s Welfare Guardian or Property Manager or for other Court orders.
These applications are time consuming, can be costly and the delays associated with them can see a loved parent waiting in limbo, either in hospital or in their own home in a high-risk situation, until orders are made by the Court. The relative making the applications might not be the one the parent would have chosen as an attorney if they had been able to make an EPOA. There can also be disputes amongst family members, which can further increase the costs and delays before orders are made.
The focus of this article is for those still able to make EPOAs and to alert you, the reader, to the recent changes surrounding the prescribed documents. If you mean to organise your EPOAs for Property and Personal Care & Welfare before it is too late (and we assume you are reading this article because you intend to do so), you should see you lawyer now while you have those good intentions, whatever your age.
Earlier this year the Protection of Personal and Property Rights Act 1988 (“the Act”) was amended with a view to provide better oversight of attorneys (those you choose to act for you when you can no longer act) while they carry out their duties and to ensure they have a better understanding of their roles. Consultation is now clearly central to an attorney’s role. The amendments require attorneys to consult with you, any people you specify in the document and any other attorneys acting for you.
Attorneys have always been required to obtain a certificate from a doctor to activate an EPOA for Personal Care & Welfare and for Property if the Property EPOA wasn’t designed by you to come into effect immediately. However, the changes now require an attorney to obtain a new certificate or letter from a doctor outlining your incapacity every time they intend to undertake a significant act for you. A significant act might be moving you into residential care or selling a major asset. There are rules around what information the letter from the doctor must include.
The changes allow you to appoint attorneys to act together and separately rather than act in just one way or the other. This means that if you have more than one attorney and you no longer think one is suitable you can remove that attorney without cancelling the whole EPOA. As long as you have one attorney left the EPOA will continue to be valid.
The amendments also place a duty on lawyers to certify that when you make your EPOA you are not doing so under any pressure or duress from well-meaning relatives. This adds extra protection for you to ensure that you and only you choose what happens after you lose mental capacity. This is perhaps the greatest aspect of an EPOA; it is a document completely designed by you. It allows you to choose for yourself the person or people you trust who will make your decisions when you are no longer able to do so and to set out guidelines as to how they must act.
The Ministry of Social Development is hopeful that these changes and the increased information and publicity around EPOAs will encourage you to construct your own EPOAs now. There is a financial cost but perhaps the cost is not as high as you fear. For most of us who have good intentions it is just a matter of getting around to making an appointment. We would be very happy to sit down with you and discuss what you need to do to ensure you are ready for your tomorrow, whatever it might look like. – Article by Melissa Bourke