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Kiwilaw does NOT prepare enduring EPAs (enduring powers of attorney) – how come?

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:

Know what you have done, and why

In particular, you need to be able to explain:

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

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