Enduring Powers of Attorney
Different to a power of attorney
A Power of Attorney is created where a person (Donor) appoints any other person (their Attorney) to act of their behalf. However, this appointment ceases to have effect if the Donor becomes mentally incapable.
An Enduring Power of Attorney on the other hand continues even if the Donor becomes mentally incapable i.e loses the mental capacity to understand the nature and consequence of their decisions or loses the ability to communicate their decisions. There are two types of Enduring Powers of Attorney:
a. Property - You can choose one or more individuals or a trustee corporation to make decisions about how your property and finances should be managed. You can decide whether you want this to come into effect immediately or only when you lose your capacity; and
b. Personal Care and Welfare – This is usually a close friend or family member(there can only be one at a time and it has to be an individual – not a trustee corporation) who makes decisions about your care e.g. selecting a rest home or deciding on medical treatment.
Why do you need an Enduring Power of Attorney?
Appointing an Enduring Power of Attorney may save your friends and loved ones the complication and expense of applying to the Family Court for the appointment of a Property Manager or Welfare Guardian if you become incapable of looking after yourself.
Who can you appoint?
Choosing someone to give Enduring Power of Attorney to is a very important decision. Think carefully about who you want to choose as your attorney, as the role can be misunderstood or abused. The ideal attorney is someone you really trust, at least 20 years old, someone who will keep your best interests at heart and who cannot benefit financially from the decisions they may have to make. Your attorney’s responsibilities are:
· To act in your best interests at all times and not abuse the trust you place in them; and
· To involve you in the decision-making as much as they can - they have to consult with you and anyone else you specify about decisions.
Why you should consult Helmore Ayers Lawyers when preparing an enduring power of attorney?
There are many considerations when making an Enduring Power of Attorney and it is worth seeking the experience and expertise of our solicitors to ensure that your interests are protected. Some of the considerations we will advise you on are:
- Who is appropriate to be your attorney(s) in your given situation?
- If two attorneys are appointed should their authority be joint or several?
- What should your attorney(s) be able to do and not do on your behalf?
- How should your attorney(s) be supported in their role? Should other people, such as family/whānau, friends, an accountant or lawyer, be consulted or provide your attorney with advice?
- Should your attorney(s) keep any particular people informed about decisions that they make?
- When should you appoint other people to step in as attorneys if something happens to your first choice?
- Should your property Enduring Power of Attorney come into effect immediately, upon a certain date or when you are determined ‘mentally incapable’?
Before signing an Enduring Power of Attorney a solicitor or qualified legal executive must explain the effects and implications of the Enduring Power of Attorney to you before you sign and the solicitor or qualified legal executive witnesses your signature.
How does an Enduring Power of Attorney work in relation to estates, trusts and companies?
An Enduring Power of Attorney does not enable your attorney to act in your capacity as an executor or trustee of an estate, a trustee of a trust or a director of a company. Alternative documents are required which Helmore Ayers Lawyers are happy to assist you with.
Feel free to contact Peter O'Dea, Partner of Helmore Ayers Lawyers, for a no-obligation chat about how this relates to you on 03 366 5086 or use the contact form below.
Lawyers | Christchurch
Phone 03 366 5086
38 Birmingham Drive, Riccarton, Christchurch 8440
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