Taupō Legal Corner: What is an enduring power of attorney, and do I need one?

Enduring Powers of Attorneys are very important documents that are worth understanding. Photo / Getty Images

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Opinion:

Whether you've only heard about them in American medical dramas, or already have one set up, Enduring Powers of Attorneys (EPA) are very important documents that are worth understanding.

So what are they?

An EPA is a document that gives someone else the ability to control parts of your life for you. They usually only come into force when you are mentally incapable of making decisions for yourself. Your attorney (or attorneys) then has the power to make decisions on your behalf, in your best interests.

There are two main types of EPAs in New Zealand. One is in relation to your property, and the other is in relation to your personal care and welfare.

The property EPA gives your attorney the power to make decisions on behalf of your property. You can set up a property EPA so that it comes into force when you are still mentally capable if you want to.

The personal care and welfare EPA gives your attorney the power to make decisions on your behalf in relation to matters such as your medical care. In American movies, this often comes up in relation to "turning off the life support". These EPAs can only come into effect when you are mentally incapable.

You can make specific rules in your EPAs. For example, you can instruct your attorney to consult a person or people before making a decision. You can appoint back-up attorneys, in case your attorney can't fulfil their role for whatever reason.

To set one up, you need legal help. You cannot create one without going through either a lawyer or a specific type of registered legal executive. The legal representative who helps you must explain the EPA to you so that you fully understand it before it is created. It is illegal for them not to do this.

You also need to be mentally capable to set one up. Your legal representative may need to get a medical certificate proving you are mentally capable before creating your EPAs.

The next question: do you need one? You can probably predict what my answer will be here. Yes.

They are of course more urgently needed if you are reaching the twilight years of your life. However, there is no guarantee that you will stay mentally healthy until you get older. If you are over the age of 18, we recommend you set up EPAs both in relation to property, and personal care and welfare.

If you don't set them up and you become mentally incapacitated, your loved ones may need to apply to the Family Court to have the power to make decisions on your behalf. This can be expensive, time-consuming and not always straightforward. It is far better to avoid this and set up your EPAs when you are still mentally capable.

Frontline Law can set up Enduring Powers of Attorney for you. Otherwise, contact your local lawyer or registered legal executive for help.