New Zealand Law Society - Lawyer appointed as attorney witnessed signature of EPOA document

Lawyer appointed as attorney witnessed signature of EPOA document

A lawyer who witnessed the signing of an enduring power of attorney (EPOA), despite the fact that the EPOA appointed him as joint attorney, has been disciplined by a Standards Committee, and ordered to pay a fine of $7,500.

The lawyer also signed the accompanying certificate confirming that he was independent of the attorneys. The Committee considered that this was a serious error by the lawyer. 

It noted the requirement under section 94A(4) of the Protection of Personal and Property Rights Act 1988 (PPPR Act) for the witness of a donor’s signature to be independent of each attorney.

The Committee stated:

“The rules regarding the signing and witnessing of EPOAs are necessary to ensure that donors are properly advised of the effects of the document and free from undue pressure from those appointed as attorneys.”

The Committee considered that the lawyer’s conduct fell short of the standard of competence and diligence that a member of the public was entitled to expect from a reasonably competent lawyer.

The Committee was also concerned about the lawyer’s conduct once the EPOA was invoked.  On several occasions the lawyer was content to step back and allow the other attorney to operate relatively independently. The lawyer’s failure to exercise oversight over his fellow attorney allowed the other attorney to unilaterally withdraw funds from the donor’s bank account and to sell an asset. The lawyer admitted that these funds remain unaccounted for.

Furthermore, allegations about the unprofessional and rude behaviour of the lawyer towards the donor’s relatives were upheld and found to be a breach of Rule 12 of the RCCC.

The Committee made a finding against the lawyer of unsatisfactory conduct in accordance with s 12(a) and (c) of the LCA. It considered that the lawyer’s conduct, particularly in relation to his signing of the EPOA, demonstrated a serious breach of his professional obligations, and did not meet the standards expected of an experienced practitioner.

The lawyer was ordered to pay a fine of $7,500 and to write a formal apology to the complainants.