When a person (“the Donor”) appoints you as their Attorney under an Enduring Power of Attorney (“EPOA”), they are trusting you to handle their affairs on their behalf.

There are two types of EPOA: Property; and Personal Care and Welfare.  Broadly speaking, Property attorneys look after the financial and property related affairs of the Donor and Personal Care and Welfare attorneys look after more personal related matters.  The EPOA will state when your Attorneyship takes effect.

As Attorney, you have some weighty responsibilities.  It is important that you know and understand the obligations of that role.  We have summarised some of your key responsibilities below to help you in your role.

Best Interests

• You must always act in the best interests of the Donor.
• You will need to manage the Donor’s property, finances and personal care and welfare in accordance with their wishes.
• You should take their known beliefs, values and culture into account.

No Conflicts of Interest

• You must be open with the Donor, act fairly and exercise reasonable care in carrying out your duties.

• You must also avoid any conflicts of interest, which means you must ensure that the Donor’s interests do not conflict with your own.

Consultation with Donor

• You must consult with the Donor as far as practicable when making decisions for them.  Even if the Donor has lost capacity, you should consult with them as much as possible.

• If you are a Personal Care and Welfare Attorney, you must encourage the Donor to act on their own behalf to the greatest extent possible and help them engage with the community.

• If you are a Property Attorney, you must encourage the Donor to develop their competence to manage their own affairs.

Consultation with Others

• If the EPOA requires, you must also, where practicable, consult with the other people stated in the EPOA and with any other Attorney appointed under the EPOA.

• If the Donor has appointed different people as Attorney for Property and for Personal Care and Welfare, both Attorneys must communicate with each other regularly to ensure that the other Attorney has all relevant information.

Information

If the EPOA requires, you must give relevant information to the people stated in the EPOA.

Financial Records

• If you are a Property Attorney, you must ensure that you keep the Donor’s money separate from your own.

• You must keep financial records and be accountable for each financial transaction.  You are liable to penalties if you fail to do this.

No Self Benefit

• You should not benefit yourself from the Donor’s property unless you are specifically permitted to do this under the EPOA.
• In certain circumstances you can recover your out-of-pocket expenses.  However, you need to be very careful in recovering expenses and therefore, before doing so, we recommend that you seek legal advice.

If you are uncertain as to whether you can take a certain action, you can seek the instructions of the Court.  If your actions are questioned by others, the Court has wide discretions to review your decisions and can make any order the Court thinks fit, including removing you as Attorney.

If the Donor dies, you automatically cease being Attorney.

If you are an Attorney and have any questions or if you have any concerns about the actions of another Attorney, please do not hesitate to contact Emma Jackson, Principal (03 925 7952/ emma@mmlaw.co.nz) or any of our Family Law team.