by I am often asked whether I prepare EPAs (sometimes abbreviated to EPOAs) – enduring powers of attorney. That is the type of ‘power of attorney’ that endures after you lose mental capacity.
(An ordinary ‘power of attorney’ is different – it authorises someone to act on your behalf – perhaps because you are overseas – but only if you have mental capacity.)
No, Kiwilaw does not provide EPAs.
We do have some suggestions about cost-effective options.
Firstly, I have not set up an automated system for doing them, and I hate spending time on one-off work.
Secondly, they have to be witnessed in person (not by video) by the legal adviser who provides legal advice and a full explanation and checks you are acting voluntarily and with mental capacity. So it’s not something that could be done by automated processes unless you still met with me in person.
Thirdly, I choose to focus on issues relating to wills and deceased estates. An EPA takes effect only while you are alive. It does not fit my practice focus.
Providers in New Zealand
I suggest you look at Public Trust, Perpetual Guardian, or local lawyers who offer fixed fees for this.
Some lawyers provide an online EPA which you finalise by visiting their offices.
Similarly, Public Trust has a cost-effective online EPA which you prepare online and then finalise in a face-to-face meeting at a Public Trust office.
Save money by thinking it through carefully beforehand
Do your research and prepare the forms
Look at this website – where there is excellent guidance: http://superseniors.msd.govt.nz/finance-planning/enduring-power-of-attorney/ – although there used to be explanatory videos as well as text, and the videos seem to have disappeared…
You can download the forms.
You can download the information sheets that, otherwise, you will be given when you sign the forms.
If you read the information sheets and then prepare what you want, you could perhaps make an appointment with a lawyer to sign it off in only (say) 20 minutes.
Instruct your lawyer
Tell them specifically that:
- you have downloaded the forms and the information sheets
- you have read the online information and also downloaded and read the information sheets
- you have completed the forms
- you want them to check that you understand what you are doing
- you are able to explain to them why you have made the decisions you have made
- you want them to witness the forms you have already prepared
- you do not want them to prepare new documents
Know what you have done, and why
In particular, you need to be able to explain:
- why have you chosen particular people as attorney/s? rather than others?
- why have you decided to have one (or more than one) attorney for property?
- Are you appointing successor attorneys? If not, why not?
- Don’t appoint the same person as successor attorney for property who is already attorney for personal care (and vice versa) – especially if they are all family members – if something happens to one attorney, the other attorney will also be bereaved and distressed and the last thing they will be able to do is take on the extra load at that time
- Can your property attorney act immediately? Or only if you lose your mental capacity? If immediately, do you want to add conditions about this (e.g. only on matters where you provide written or emailed instructions beforehand)?
- Who should be consulted or informed about decisions that are made by your attorney/s? For instance, if you do not appoint your spouse as your attorney, is your attorney required to consult them? If you appoint one child as attorney, are they required to consult or at least inform the others?
- Why have you decided to allow your property attorney to buy any Christmas or birthday presents for specified family members on your behalf? Or not? (This is one of the questions in the form.)
You would need to have the forms already completed, and you would need to be able to explain orally why you had made the decisions you made – to show that you understood the options and had thought it through carefully and knew what you were doing. Otherwise it would all take longer and be more expensive because the lawyer would have to go through it with you in detail.
Final word: the EPA stops when you die
People often tell me they hold the EPA for a loved one who has died. They think that entitles them to make decisions and, sometimes, access their loved one’s bank account until probate or letters of administration are granted.
That is not the case.
An EPA ceases to take effect when the person making it (the donor) dies.
You cannot lawfully use the EPA to access your loved one’s bank account or other funds after they have died.
You should notify the bank and they will freeze the account – unless it’s a joint account and the other owner of the account is still alive. (If it’s a joint account, ownership passes to the surviving owner/s and it is not part of your loved one’s estate so it is not frozen by the bank.)
In practice, sometimes people do withdraw funds before notifying the bank, so they can pay small estate debts and the funeral bill. If they do that, they must keep clear records and be aware there could be issues if someone complains. They should definitely record the actual bank balance as at the date of death, and all the transactions, because the executor or administrator of the estate will need that information for their records.
Cheryl Simes – 12 January 2023
