February 23 2015
Often people agree to accept the appointment as an attorney under an Enduring Power of Attorney (EPA) without really understanding what’s involved and what will be expected of them.
An attorney under an EPA is similar to a trustee or an executor. The person giving you power of attorney is placing trust in you to do the right thing. The law expects you to act selflessly in the interests of the person whose property or welfare you are looking after.
It’s important to understand the terms used. An EPA is a document giving someone power to act on behalf of someone else or to make decisions on behalf of that person. The person who is given that power is called the ‘attorney’.¹ An enduring power of attorney continues to have effect even if the person who gave the power of attorney (the donor) is no longer mentally competent to know what’s happening.
There are two types of EPA. An EPA for property usually applies to everything that is owned by the person giving power of attorney, but it can be more limited. An EPA for personal care and welfare relates to the day-to-day care and wellbeing of the donor.
Before you agree to act as an attorney and to sign the EPA, you should read the EPA form carefully, particularly the notes. If you have any questions, check with the lawyer who prepared the EPA. The EPA form will often contain a number of specific requirements. For example, the attorney may need to consult with a named person or several people, or give information to certain people. In some cases the attorney may only be allowed to start acting once a doctor has certified that the donor is no longer mentally competent. The EPA may even say which doctor – or which type of doctor – must provide the certificate.
The primary duty of a property attorney is to preserve and protect the donor’s assets. If the donor can still make some decisions or deal with some assets the attorney should help the donor to do so.
It’s not the role of the attorney to give away assets¹ unless the donor has specifically authorised this (for example, by including a suitable clause in the EPA). Attorneys must not use their position for their own benefit unless the donor has approved this. Attorneys may use the donor’s money to refund out-of-pocket expenses the attorney has incurred.
Unlike a property manager appointed by the court, an EPA attorney has no obligation to prepare annual accounts in any specific format. Nevertheless it’s best if attorneys keep proper accounts in case they are later challenged. It’s also advisable to keep family members fully informed. Even if the EPA doesn’t specifically require these things, it’s wise to avoid the sort of suspicion that can arise if family members feel they have been left in the dark.
Personal care and welfare attorney
The primary role of the personal care and welfare attorney is to ensure that the donor is being well cared for and is in suitable accommodation. Personal care and welfare attorneys will usually keep in close contact with the staff of the home or other place where the donor is living. There have, in the past, been documented cases of elder abuse by family members and others. It’s important that personal care and welfare attorneys are on the lookout for anything like this.
The personal care and welfare attorney doesn’t have any power to make decisions about marriage, divorce, civil union or adoption – or to refuse normal medical care or procedures to save life or prevent serious damage to the donor’s health.³ It‘s important to understand that an EPA for personal care and welfare is not an ‘advance directive’ or ‘living Will’. Directions not to resuscitate – or not to go to great lengths to prolong life – do not belong in an EPA.
Acting prudently and selflessly
The overriding requirement of all EPA attorneys is to act in the best interests of the donor of the EPA. For example, a property attorney should look for a prudent way to deal with this person’s money, bearing in mind that it’s not the attorney’s own money. Often the best question to ask yourself is what would the donor want in these circumstances?
Attorneys also are expected to help the donor develop whatever capacity he or she may have to make decisions.
Being an EPA attorney doesn’t need to be a difficult task. When in doubt you’re entitled to ask advice from lawyers and health professionals as appropriate. But it’s always wise to be organised, to keep careful records and to communicate regularly so that everyone interested in the donor’s welfare understands what has been done and why.
¹ This is not the same as an American attorney’ who is what we would call a lawyer.
² Robson v Robson  NZFC 9518.
³ Section 18 Protection of Personal and Property Rights Act 1988.