Establishing an Enduring Power of Attorney (EPA) can be a complex area for legal professionals and clients alike.
In New Zealand, Part 9 of the Protection of Personal and Property Rights Act 1988 (PPPR Act) sets out the law for EPAs. Under an EPA a person (the donor), gives another person1 (an attorney) the power to act in relation to their personal care and welfare, their property affairs, or both.
A personal care and welfare EPA only comes into effect if the donor becomes mentally incapable. For a property EPA, the donor has the option to authorise their EPA to come into effect only if they become mentally incapable, or while they are still mentally capable and to continue in effect if they become mentally incapable.
The PPPR Act was amended in 2007 to provide donors with greater protection against abuse.
These amendments were reviewed in 2013 by the then Minister for Senior Citizens, Jo Goodhew, to determine their effectiveness. The review considered feedback from 437 questionnaire responses, public meetings in 15 locations, meetings with stakeholders and detailed written submissions. Many submitters had professional experience of working with EPAs.
Overall, the review concluded that the legislation is generally effective in protecting people with an EPA. However, there are some areas that need addressing in order to improve the effectiveness of the legislation, and to encourage more people to set up an EPA.
Providing better and clearer information
One of the key findings of the review was a need for better and clearer information about EPAs. To address this, in May 2014 Minister Goodhew launched the Protect Your Future public information campaign.
The year-long campaign, which is run by the Office for Senior Citizens, aims to:
- increase the public’s understanding of the importance of setting up an EPA, how EPAs work, and how to get one;
- improve understanding of the different roles and responsibilities of donors, attorneys, health practitioners and legal professionals;
- provide information about the review process and how to make a complaint; and
- increase the number of people with EPAs in place.
The Office for Senior Citizens has published two information brochures – one providing a general overview about EPAs and their importance, and the other providing information for attorneys about their responsibilities.
In the coming months the Office will be publishing these brochures in nine languages, and developing resources about the complaints process and how to effectively prepare to set up an EPA.
Protect Your Future resources are available to download at www.msd.govt.nz/epa and in hard copy at Citizens Advice Bureaux, Community Law Centres, public libraries, and Age Concern offices around the country.
Legal professionals who would like to order copies for their offices can do so by contacting the Office for Senior Citizens on 0800 273 674. You can also direct your clients to www.msd.govt.nz/epa to access general information and comprehensive frequently asked questions about EPAs.
Reviewing the legislation
In addition to the need for better and clearer information, the review also highlighted some areas of Part 9 of the PPPR Act and the EPA regulations that require change. To address these, the Office for Senior Citizens has been working with the Ministries of Justice and Health and a Reference Group made up of key stakeholders, including Age Concern, Grey Power, the Office for Disability Issues, a representative of New Zealand geriatricians, the Public Trust, a private law firm, and the New Zealand Law Society. We are developing proposals that will:
- simplify the EPA forms to make them clearer and easier to understand;
- provide a way for attorneys to better understand their role and their responsibilities. This may include requiring attorneys to sign that they have read information on their role when they accept their appointment;
- standardise the explanation legal professionals give donors on the effects and implications of their EPA;
- make the witnessing requirements simpler where there are mutual appointments, for example, when a husband and wife are both appointing each other as their attorney;
- ensure that the EPA defaults to a successor attorney (if named) if a donor who has mental capacity revokes the current attorney’s appointment;
- make it clear that attorneys cannot act contrary to a donor’s advance directive (on a personal care and welfare matter on which the attorney can act); and
- remove the option in the form for a donor to nominate the scope of practice of the health professional who will assess their mental capacity.
Together with the Reference Group, and in consultation with the Law Society we are currently working through how the changes to the legislation might look, in order to achieve the above. Recommendations will be provided to Cabinet in April 2015.
How you can help
Helping your clients plan for the future is important, and many people don’t understand the importance of having an EPA.
You can help by considering opportunities to discuss EPAs with your clients, particularly those over 65, during their visits. A good time to do this might be when they are making or updating their will.
It’s also important to ensure that both donors and attorneys understand the details of the EPA, and their role and responsibilities when they sign the EPA forms. The Protect Your Future information resources can help to communicate this. Resources are available at www.msd.govt.nz/epa or call 0800 273 674 to order hard copies.
Sarah Clark is the Director of the Office for Senior Citizens, one of the population offices within the Ministry of Social Development. The Office for Senior Citizens has a primary focus on building strong social sector relationships to inform the Minister for Senior Citizens about issues affecting older people. If you would like to know more about the Office for Senior Citizens you can like the Office’s Facebook page www.facebook.com/OfficeforSeniorCitizens.
- A donor can appoint more than one attorney to act in relation to their property affairs but only one in relation to their personal care and welfare. Successor attorneys may also be appointed to replace attorneys whose appointments have ended.