Why you need enduring powers of attorney ("EPA")
Most of us may have an up-to-date Will, but how many of us have thought about who will manage our affairs if we become incapacitated?
Here are the top reasons to have EPAs:
An EPA is a legal document that allows you to appoint a person (the attorney) to make decisions about your property or financial affairs, and welfare or health care.
Video from superseniors.msd.govt.nz
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What is an EPA?
The Protection of Personal and Property Rights Act 1988 (the "PPPR Act"), enables EPAs to be prepared in New Zealand. They are called enduring powers of attorney because of their enduring nature - they can be used after you are mentally incapacitated, unlike normal powers of attorney which cannot be used after you are mentally incapacitated.
There are two types of EPA:
Your EPA in relation to property
The EPA in relation to property "may authorise the attorney to act generally in relation to the whole or a specified part of the donor’s affairs in relation to his or her property, or to act in relation to specified things on the donor’s behalf, and in either case such authorisation may be given subject to conditions and restriction " (s. 97 PPPR Act). Property "means any real or personal property; includes any interest in any property; and also includes any money, any business or undertaking, and any right or power exercisable in respect of any property." (s. 2 PPPR Act). In other words, it means everything that you own, including bank accounts, investments, and real estate.
An EPA in relation to property empowers the attorney to do anything which you can lawfully do: "Where a donor of an enduring power of attorney authorises the attorney to act generally in relation to the whole or a specified part of the donor’s affairs in relation to the donor’s property, the attorney shall have authority to do anything on behalf of the donor that the donor can lawfully do by an attorney, but subject to sections 100 and 107;and to any conditions or restrictions contained in the enduring power of attorney." (S.97(2) PPPR Act).
Normally your attorney cannot use the power of attorney for his or her own benefit or for the benefit of other persons:
"An attorney under an enduring power of attorney must not, at any time while the donor is mentally incapable, act to the benefit of the attorney or of a person other than the donor, or recover any expenses from the donor’s property, unless and only to the extent that—
(a) the donor has specified a power to so act in the enduring power of attorney;..." (s. 107(1) PPPR Act).
Your attorney can, unless you have explicitly stated in your EPA that they cannot do so, pay for: (s 107(2) PPPR Act)
(a) out-of-pocket expenses (other than lost wages or remuneration) reasonably incurred by an attorney; or
(b) professional fees and expenses reasonably incurred by an attorney who—
(i) has accepted appointment in a professional capacity; or
(ii) has undertaken work in any professional capacity to give effect to the decisions taken under the enduring power of attorney.
(c) deal with any property that you and your attorney jointly own if you and your attorney are married or in a civil union or de facto relationship, are living together, and are sharing your incomes:
(d) 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 consider whether you can afford to make them, having regard to your overall financial circumstances and commitments.
Your EPA in relation to personal care and welfare
The EPA in relation to personal care and welfare "may authorise the attorney to act in relation to the donor’s personal care and welfare, either generally or in relation to specific matters, and in either case such authorisation may be given subject to conditions and restrictions" (s 98 PPPR Act).
An EPA in relation to personal care and welfare may authorise the attorney to act in relation to the donor’s personal care and welfare, either generally or in relation to specific matters, and in either case such authorisation may be given subject to conditions and restrictions;"
Your personal care and welfare attorney may not:
When does your EPA come into effect?
You can choose whether your EPA comes into effect while you are still mentally capable or only if you become mentally incapable.
If you choose to have your EPA take effect while you are still mentally capable, it will remain in effect if you later become mentally incapable.
If you choose to have your EPA take effect only if you become mentally incapable, your attorney can act only if a relevant health practitioner has issued a medical certificate stating that you are mentally incapable or if the court has decided that you are mentally incapable.
Under the PPPR Act (s 94(1)), you are mentally incapable in relation to your property if you are not wholly competent to manage your own affairs in relation to your property.
Under the PPPR Act (s 94(2)), you are mentally incapable if, in relation to your personal care and welfare, you lack the capacity to—
Everyone is presumed to have the capacity to do these things until the contrary is shown.
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Who can your attorneys be?
Any person who is at least 20 years old, and who is not bankrupt or subject to an order under the Act (because that person is unable to look after his or her affairs without assistance) can be appointed as an attorney.
In the case of an EPA in relation to property, it is also possible to appoint a statutory Trustee Corporation to act as attorney.
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How many attorneys can you have?
More than one attorney can be appointed in relation to property. If you do appoint more than one, you should specify how the attorneys are to act. It is normal to specify that they can act either together or separately ("jointly or severally). It is not sensible to specify that they are to act together at all times ("jointly"), as if one attorney dies or becomes mentally incapable, the property attorney then ceases.
You can only appoint one attorney at a time in relation to personal care and welfare. You should always appoint successor welfare attorneys for safety.
How to get an enduring power of attorney
The enduring power of attorney must be signed by both the person creating the power of attorney (the donor) and the attorney. The donor's signature must be witnessed by a New Zealand lawyer with a current practicing certificate, or an experienced legal executive. The signature of the attorneys can be witnessed by an adult third party.
There are standard forms that must be used can be downloaded here. so that you can understand the forms and make decisions on the options which are appropriate for you. No deletions can be made.
Before you see your lawyer think about:
When you have decided who you would like as your attorneys and what you want them to do, the EPA's need to be witnessed by lawyer with a current New Zealand Law Society practicing certificate, a qualified legal executive or a representative of a trustee corporation. They are required to make sure that you understand all of your options, what the EPA document means, and that it meets all legal requirements. For those reasons very few of those witnesses will witness EPA's that you have prepared, as they will not know whether you have made changes to the EPA forms which are not permitted. It will cost more for them to check what you have prepared than it would for them to prepare the EPA's.
How to cancel your enduring powers of attorney
An enduring power of attorney ceases to have effect when:
You can change or end your EPA at any time you are mentally capable. If you or your family have concerns about an attorney’s behaviour, applications for help can be made to the Family Court for help.
An attorney loses their power if they become bankrupt, mentally incapable, subject to a personal or property court order, or the Family Court revokes their appointment. An EPA stops if you, or they, die. You may name other attorneys to take over if your attorney dies.
Your attorney can also opt-out of their role by giving notice in writing if you are still mentally capable, or applying to the Family Court if you are no longer mentally capable.
What is a will?
Everyone needs a will. If you do not have one Government, and not you, decides who gets your hard-earned assets. Most of your life is spent working to build up assets to provide security for yourself and your family. Your will lets you (and not Government) decide who will receive your property and belongings after you die. Making a will is the only way in which you can make sure that your lifetimes' work is passed on to the people you choose.
Your will can also detail:
Formalities vary from country to country. In New Zealand to be valid your will must be:
Why should I make a will?
Everyone needs a will. If you do not have one Government, and not you, decides who gets your hard-earned assets.
If you die without a will then you die "intestate and what happens then is like Russian roulette. The laws of the country decide who gets your property. The law provides a formula which sets out who is entitled to the property of a deceased person who does not leave a will. The formula is unlikely to distribute your assets in the way you would have wanted.
Most of your life is spent working to build up assets to provide security for yourself and your family. Your will lets you (and not Government) decide who will receive your property and belongings after you die. Making a will is the only way in which you can make sure that your lifetime's work is passed on to the people you choose.
How old do I have to be to make a will?
In New Zealand, you need to be 18.
Can I make a will myself?
You can make a will yourself if you wish by :
Using a lawyer or trustee company. The problem with such wills is that they are only as good as the information which you provide them. Many important matters are frequently not covered, or if they are the cost is very high. The trustee companies which charge you nothing to prepare your will do not do so out of the goodness of their hearts. They make the cost back many times over by high charges to administer your estate after your death.
Using printed will forms which are available from stationers, or printed do it yourself will kits. These printed wills are normally very basic, and end up looking like a dog's breakfast due to you having to cross out the parts not relevant to you. They are not nearly as comprehensive as an expert will creation package.
You should never prepare your will yourself without using a will creation package or will form. There have been very many cases
where homemade wills were either unclear, not properly prepared, not properly signed or witnessed or caused an unwanted tax liability.
How can I make sure my wishes are carried out?
Your will appoints the executors and trustees who hold, manage and distribute your assets after your death, in accordance with the directions given in your will. When making a will, choosing the right executor is an important decision.
You can name one or more person(s) to act as executor(s) and trustee(s). Anyone can be your executor. In New Zealand, the executor must be 20 or older.
Before appointing anyone as an executor you should first ask them if they are prepared to take on that responsibility after your death. The duties expected of an executor can be difficult, demanding and time-consuming.
In most cases, an executor will require legal or other professional representation or advice which of course involves costs and liabilities to the estate. Your chosen executor should be aware of the legal responsibilities and have some understanding of accounting, business practices, and taxation matters.
Your partner will normally be appointed by you as the sole executor and trustee if they survive you and you are leaving all of your assets to your partner.
If your partner dies before you, your adult children (i.e. those aged 20 or over) will normally be appointed by you as the only executors if you consider that they are then old enough and wise enough to carry out these responsibilities.
You can also appoint one or more adults whom you trust (either in addition to or instead of your partner and/or children) to be the executors and trustees of your will. Examples of when this is desirable are:
If your partner or children need help to carry out the terms of the will, or
If you believe there should be an outside person to make sure that the terms of your will are followed.
An outside trustee can also assist in sorting out any disagreements that may arise between the trustees. Choices of outside trustees include:
Being an executor and trustee is a very responsible position. The executor has to obtain probate of the will from the High Court. Probate is the certificate granted by a court to confirm that the will of a deceased person has been proved and registered in the court and that a right to administer their effects has been granted to the executor proving the will. The executor then pays any taxes, debts or expenses before finally distributing the balance to the beneficiaries named in your will. You can provide in your will that the executor is to be paid for his or her work as executor.
Can I leave my assets to anyone?
Yes, your assets can be left to anyone. However, if you do not make proper provision for your husband or wife, or in New Zealand your partner, or your children (particularly if they are dependent), they could challenge your will. This is an area of law upon which you need to take detailed legal advice if you do not wish to leave assets to your partner or one or more of your children.
Can I change my will if my circumstances change?
You can change your will at any time. If your circumstances change in any way, you should alter your will. However, you cannot make the alteration by, for instance, crossing something out on the original will and writing in your new wishes.
If the alterations are minor, you can make a codicil (a separate document in which you change a provision in your will). A codicil must be signed in the presence of two witnesses, in the same way as your will was. We strongly recommend (as do most will experts) that it is better to make a new will. One benefit of a new will is that your beneficiaries will not see (and possibly become upset about) the changes which you have made. The second benefit is that by having your wishes recorded in one document the possibility that the codicil may be overlooked or lost is avoided.
What happens to my will if I marry or divorce?
The law differs between countries.
In New Zealand, any will made before you get married will be automatically revoked (canceled) when you marry, unless it is expressly stated in the will that it was made in contemplation of marriage.
Before you marry you should, therefore, make a new will containing a clause saying that it is made in contemplation of your marriage.
In New Zealand, any gift or appointment (such as an executor or guardian) in favour of a former spouse in your will is automatically revoked (canceled) when your marriage is dissolved.
You should always make a new will if you are divorced or are separated.
The dangers of jointly owned property
In the case of couples, everything jointly owned passes by survivorship to the survivor regardless of what your will says. For most couples, this means that only the will of the last of you is effective.
To make sure that the important wishes in your will are carried out you also need to change the ownership of all jointly owned property into ownership as tenants in common in equal shares. This legal term means simply that it no longer passes by survivorship to the last of you, but passes under the terms of your will.
If you are not our clients call the experts at Ross Holmes Lawyers for afree 30 minute appointment