New Zealand Law Society - Enduring powers of attorney changes live on 16 March

Enduring powers of attorney changes live on 16 March

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Amendments to the law relating to enduring powers of attorney come into effect on 16 March 2017. The new provisions can be found in Part 23 of the Statutes Amendment Act 2016, until they are incorporated into the Protection of Personal and Property Rights Act 1988 from 16 March.

The amendments include new plain language forms of Enduring Power of Attorney (EPA) and a plain language explanation of the effects and implications of entering into an EPA. New amended regulations will come into effect on 16 March when the new forms must be used.

The changes

The changes which have been made to the Protection of Personal and Property Rights Act 1988 can be summarised as follows:

  • Less restrictive requirements for mutual appointments: New section 94A(4A) allowing the same authorised witness for the respective donors where there is no more than a negligible risk of conflict of interest.
  • Standard Explanations: New s 94A(6A) providing that the donor’s witness may use the standard explanation prescribed by regulations to explain the effects and implications of the EPA.
  • Additional certification requirements for the donor’s witness: There are additional requirements to the Witness Certificate, in section 94A(7)(ab).
  • Optional provisions revoking previous EPAs and provision for giving notice of this revocation: New s 95A allowing a provision in the EPA to revoke all previous EPAs and for giving notice of this revocation, including after the donor loses capacity.
  • Duty of attorneys to consult: Section 99A(1) is amended to expand the duty. Consultation will be required with any other EPA attorney of the donor (but not with a successor attorney whose appointment has not taken effect).
  • Medical certificates of incapacity no longer in prescribed form: The medical certificate must still contain the prescribed information – as per the amended s 99D.
  • Revocation of appointment: Amended s 106 will allow the donor to revoke an attorney’s appointment without revoking the EPA if a successor attorney is appointed, and clarifies that an EPA appointing more than one attorney with several or joint-and-several authority will only cease to have effect when the last remaining attorney’s appointment is revoked by the donor under new s 106A or otherwise ceases to have effect.

The new Forms

The new Forms will be required from 16 March 2017 and the old forms will no longer be effective as the prescribed forms of EPA. As at 9 March the new Forms were still not available, but the regulations approving them were expected to be made on 13 March. The Ministry of Social Development will post a link to the new forms when available on its Super Seniors information on Enduring Powers of Attorney.

NZ Law Society revises Powers of Attorney guide

To coincide with the changes, the New Zealand Law Society has released a fully revised version of its popular Powers of Attorney guide. This is available both online and as a booklet in the Law Awareness series. Copies of the booklet may be ordered using the online form.

The revision was undertaken by Chris Kelly of Greg Kelly Law. Chris Kelly has over 35 years' experience in wills, trusts, estates and elder law.

He is co-author of Garrow & Kelly Law of Trusts and Trustees (6th edition and the 7th edition published in 2013) and Dobbie’s Probate Administration Practice (5th edition, 2008 and 6th edition, 2014).