In our last newsletter, we reminded you about the importance of having a Will that always reflects your current position and wishes.

Now we turn to Enduring Powers of Attorney – where you get to choose the people you trust to make decisions on your behalf during your lifetime. Like Wills, this form of estate planning is useful for all, irrespective of age or well being.

There are two separate and distinct appointments:

• Property:
  • Your attorney stands in your shoes and can deal with all your assets and possessions including land, bank accounts, shares, cars, family photos and heirlooms, jewellery, bitcoin, airpoints, furniture, clothing
  • The document can be drafted to have an immediate or a delayed effect such as only on your absence from New Zealand, or when you have lost capacity
  • You may appoint one or more attorneys to act together or independently of each other
  • Your attorney(s) must act always in your best interest
  • Your attorney(s) must tell you when they are acting under the appointment and must consult and provide information to persons who are interested in your welfare. You may also give a direction to your attorney to consult/provide information to specific people.
• Personal Care and Welfare:
  • Your attorney decides where you will live, who will care for you, can talk with your doctors and specialists, can give consent to medical procedures
  • Your attorney must act always in your best interest
  • The appointments only comes into effect, when on the assessment of a medical practitioner, it is confirmed that you do not have sufficient mental capacity to understand the effect of your decisions
  • You appoint one attorney to act for you at any one time, but you may appoint back up attorneys in priority if the previous attorney is unable to act

The appointments are made while you have mental capacity.  You can replace or cancel your attorney(s) at any time that you retain capacity.

You may not replace or amend the appointments or the terms of the appointments if you lose capacity.  The enduring nature of the appointments is such that on the assessment of loss of capacity, the authority given by you continues until your death.

We recommend appointing attorneys.  YOU decide who you want to act for you.   In making that decision, you are choosing people that you trust absolutely.   You have the opportunity to discuss what matters to you with those people before they are called on to act in your place.

Loss of capacity can occur suddenly with immediate effect.  It can occur slowly over a period of time.  If you have not made attorney appointments prior to losing capacity the Family Court will appoint welfare and/or property guardians for you.  Your spouse or your children do not have any automatic right to act on your behalf if you have not put the appropriate appointment in place.

Applications to the Family Court are expensive and time consuming.  Sometimes families cannot agree on who should request the appointment.  Entry by you into these documents ahead of time can save a lot of heartache and expense, allowing your family to concentrate on you and your remaining years.

Think about attorney appointments as an insurance policy.  Rather like a “what if” scenario.

Talk to us about you Enduring Power of Attorney. Legal Executive Margaret Mary De Goldi (DDI 03 343 8381 / margaretmary@mmlaw.co.nz).