Reduce the family friction – put controls in your EPA (enduring power of attorney) – to protect your attorney from attack by other members of the family

mental-health-2313428_1280If you become incapable of making decisions, or of communicating decisions, who will do this for you?

The cheapest answer is to appoint an ‘attorney’ beforehand, by a document known as an ‘enduring power of attorney’ (‘EPA’). 

You do not have to be ‘old’. Young people have car crashes and other experiences that can leave them alive but mentally incapable. A well-drafted EPA can last a lifetime if it includes appropriate successor attorneys; although usually EPAs should be reviewed when you review your will.

There are two types of EPA: (a) for property; (b) for personal care and welfare.

An EPA for personal care and welfare does not come into effect until you lose mental capacity. It may never be needed; but it’s too late if you wait until the need arises. (Then, instead of an EPA, someone will have to apply to the Family Court for an order appointing a welfare guardian. That is more complicated and expensive and also involves regular reviews.)

An EPA for property comes into effect whenever you choose.  If you lose mental capacity before making an EPA, someone will have to apply to the Family Court for an order appointing one or more property managers. That is more complicated and expensive and requires formal accounts to be prepared and regular reviews.

You can revoke (cancel) or suspend the appointment of an ‘attorney’. If you do, you must given written notice to the attorney.

You can appoint anyone to act as your ‘attorney’, as long as they are over 20, not bankrupt, and not mentally incapable themselves. You can also appoint one or more ‘successor’ attorneys, who become your attorney if the first-named attorney cannot act.

People often appoint (a) their spouse; (b) if there is no spouse, or as a ‘successor attorney’, an adult child.  In many families, that can create avoidable issues.

Family conflict can arise if other family members mistrust the appointed ‘attorney’, or indeed if the appointed ‘attorney’ abuses the trust that has been placed in them.

Your preferred attorney may also be doubtful whether they want sole responsibility.

You can reduce such issues by (a) including a clause requiring the attorney to consult another named person before making decisions; and/or (b) requiring the attorney to provide information to a named person (‘supervisor’). These options are available on the standard forms. The named person is not required to sign the EPA; however, it is wise to obtain written confirmation of their willingness to perform this role.

Information. Option (b) (a ‘supervisor’ – to whom the attorney must provide information) requires you to specify in the EPA what information must be provided, and when. For an EPA (personal care and welfare), examples could include: ‘Two-monthly email updates on donor’s circumstances’; or ‘information about decisions about residential care’; or ‘copies of medical notes within 48 hours of medical attention’. For an EPA (property), examples could include: ‘Monthly bank statements’; or ‘Within 48 hours, details about any financial transaction exceeding $200’; or ‘Statements and management reports from donor’s investments.’  For any EPA, there could also be a general clause: ‘Any other information as requested, within 7 days of request.’

The ‘attorney’ can then rely on the other named person to act as a visible check on the attorney’s decisions. The other person can potentially raise early concerns with other family members or the Family Court if the attorney exceeds their authority or abuses their position and will not correct their error. They can also answer speculative but unfounded concerns raised by other family members.

Keep records. For this to work, there needs to be an accessible record of the attorney consulting or informing the other person. Therefore the attorney should keep a ‘paper trail’ (or at least an email trail), to prove that everything has been above board. Keep a paper file or electronic file of decisions made and the communications about them.

Resisting challenges. A disgruntled relative may still try to challenge the attorney’s actions; but they will need solid grounds, and they risk having to pay the attorney’s costs of defending any such challenge. It will be much easier to resist any such challenge if two people are involved when decisions are made, and if the decisions are systematically and accurately recorded.

For property matters only (not available for a personal-care-and-welfare EPA), another option is to appoint two concurrent attorneys, and require them to act jointly. You can still also include consultation and/or supervision requirements as well.

Depending on your circumstances, you may want to include professionals such as lawyers or accountants as attorneys, consultants, or supervisors. This will incur ongoing fees.  In many circumstances it is not necessary.

However, an independent professional legal adviser is required when you first make the EPA: to advise you about the EPA, witness your signature, and certify to their belief that you are acting voluntarily and with full understanding of the EPA.  This is a legal requirement, put in place by Parliament. That adviser must be a lawyer, qualified legal executive, or representative of a trustee corporation.

Resources about EPAs:

Main government website: http://superseniors.msd.govt.nz/finance-planning/enduring-power-of-attorney/

Family Court involvement in EPAs: https://www.justice.govt.nz/family/powers-to-make-decisions/the-court-and-enduring-power-of-attorney-epa/

Legislation: Protection of Personal and Property Rights Act 1988 Part 9

Informative videos:

When should you set up an EPA?

Can a younger person get an EPA?

Who can you name as your attorney?

Can I instruct my attorney to consult other people?

If I don’t have an EPA, and if decisions need to be made about my property and/or my personal care and welfare after I become mentally incapable, what happens? 

What are the main barriers to getting an EPA?

What triggers an EPA to come into effect?

How do I get an EPA?

What happens to my EPA if I move to another country?

Forms:

EPA – Property (new form March 2017)

EPA – Personal care and welfare (new form March 2017)

Remember – although you may download these forms and complete them yourself, they are not legally valid unless they are witnessed and certified by a professional legal adviser.  You may reduce your legal fees by downloading and completing these yourself before you meet with the legal adviser. Ask your legal adviser about this.

At Kiwilaw you will pay less if you download and complete the forms yourself, as long as they are clear and legible.

 

Cheryl Simes

26 October 2017

 

Keep others honest and yourself humble – it’s legal to record your phone conversations, without disclosing the fact

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In New Zealand, that is. Do NOT rely on this if you are outside New Zealand.

 

In general terms, if you are on a phone call to someone else, you may record that call. Except in special circumstances (e.g. if you are a member of a profession with a specific ethical code that requires disclosure, or if specific contractual provisions apply), you are not required to disclose the fact that you are recording.

 

Do not expect government agencies, or professionals, to be happy about the fact that you are recording.  It will increase their suspicion of you. It may be held against you if they are assessing your attitude. (That can be a good reason not to tell them.  However, if they specifically ask whether you are recording, do not lie. Instead, tell them you are recording, show them this blog, and invite them to make their own recording as well.)

 

Reputable, competent and informed professionals will not object if you disclose that you are recording.

I have learnt from the experiences of some of my clients. I now recommend to many clients that they routinely record interviews and phone conversations with professionals and agencies, such as social workers, teachers, medical staff, and anyone else where an issue may arise about what was said. The System can be too ready to believe other members of The System.

A client may subsequently need to prove that they were indeed given particular advice that proved to be unwise (and that is subsequently denied by the advice giver or their employer).  Or that they did not say something. Or that they did. Or that the social worker (or other professional) did or did not say something.

However, recording interviews and phone calls can also enable the lawyer to provide better advice to the client. The client does not always accurately remember (or relate) the conversation. If a crucial call or meeting was recorded, the client and/or lawyer can listen to the recording and, if necessary, gently correct any misunderstanding, before the misunderstanding creates a new problem. A client who is humble enough to accept that they may perhaps have been mistaken, and who agrees to check this before escalating a conflict, should be applauded.

It is reasonable for a lawyer to insist on listening to the recording herself before quoting or using it on a client’s behalf. This expense is insignificant compared to the cost of unnecessarily prolonged proceedings. The lawyer may also identify reasons why using the recording in evidence could backfire, even if the client believes it helps their case.

Just knowing that the recordings are there if needed can help boost a client’s confidence in dealing with agencies. There should be no need to retrieve the recording – unless a dispute arises about what happened.

However, if a client records phone calls or interviews, the existence of such recordings may subsequently have to be disclosed to the court and to other parties, if the recordings are relevant to legal proceedings. The content of the recordings may also have to be disclosed, unless there is a basis to claim confidentiality or privilege.  It is also illegal to destroy recordings (or other documents) that may be relevant to legal proceedings. Wise clients keep this in mind and ensure nothing is said in a recorded call that may reflect adversely on the client.  In many situations it is wise not to volunteer the fact that such recordings exist, especially if there will be no routine procedural ‘discovery’ requirement.

Covert recording may backfire if a party is trying to ‘set up’ or ‘entrap’ another party by asking leading questions or trying to manipulate a conversation.

Even if no such entrapment occurs, covert recording may also be interpreted as breaching a relationship of trust and confidence. Do not covertly record a conversation with your spouse!  Consider how the other person will react if they learn you have been recording and you have not disclosed it at the time. Knowing you have a legal right to do something does not always prevent negative consequences if someone objects. Use discretion and judgment.

Finally, making the recording is one thing. Disclosing its contents to a third party is a different matter.  Legal privilege allows anything to be disclosed in confidence to a lawyer for the purposes of obtaining legal advice. Disclosure to anyone else who was not a party to the recorded conversation may breach privacy laws or incur liability for defamation or breach of confidence, or even criminal liability in some instances.  Caution is advised.

I repeat – this article broadly reflects New Zealand law. Elsewhere the law may be different. Even within New Zealand, the general information in this article may not fit your own specific circumstances. Exceptions exist that have not been mentioned here. This article should not be relied on as legal advice.

 

Cheryl Simes

Prisoners don’t cease to be parents

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A prison inmate has the same legal status as any other parent/guardian.

So a serving prisoner may apply for parenting orders or orders involving guardianship disputes.  A prisoner may also defend applications for such orders.

If a Family Court judge (or registrar) agrees that the interests of justice require the prisoner to attend court in person, the prisoner may have to pay the reasonable expenses incurred in facilitating this.  I say ‘may’ because  I do not accept that this is compulsory in every instance.

I have been told that such costs are recoverable from Legal Aid as a disbursement. From a colleague’s recent experience, the main difficulty seems to be in obtaining timely information from the prison as to the amount that needs to be deposited.

This will be a greater challenge in non-urgent Care of Children Act proceedings where, in initial stages, parties are required to represent themselves and cannot have lawyers acting for them, and are not eligible for legal aid.

Section 65 of the Corrections Act 2004 specifies that, in a civil proceeding (i.e. not a criminal proceeding), any person who applies for an order to produce the prisoner to court must pay those costs.

Contrary to the belief of some practitioners and judicial officers, the statute does not say that the prisoner must pay the costs. It imposes the obligation on the party who applies to have the prisoner brought to court.

The prisoner could be needed as a witness, rather than as a party. If a witness is required for cross-examination, it is the party who filed the witness’s affidavit who becomes responsible for ensuring the witness is available for cross-examination. This is usually done by applying to the court for a witness summons, and then serving the summons along with specified witness expenses.

The order to produce a prisoner is similar to that summons. It is the party who seeks to rely on the prisoner’s evidence who will apply for the order to produce the prisoner. It may indeed be the prisoner, but only if they are a party to the proceedings.

I am aware of two recent cases – both involving prisoners who were parties to the proceedings – where neither party applied to the court for an order to produce the prisoner.

In the first case, I suggested that the court could make an order of its own motion, if the judge considered it necessary in the interests of justice for the prisoner to be present. (The judge declined. It was too soon to say whether the prisoner’s attendance was required.)

In the second case, the presiding judge made the order so that the hearing could proceed, and minuted the expectation that the prisoner would pay the relevant costs.

With great respect to the presiding judge, I consider the latter minute may have been misguided.

The statute only requires ‘the person applying’ to pay the costs.

If the order is made on the court’s initiative, that section ought not to apply.

At least, that’s my interpretation. I confess I have not (yet) checked for any case law on this. One day, in my spare time, just for fun,….

Cheryl Simes (Kiwilaw)

(Originally posted on 13 December 2015. Now transferred to a different page.)