Will having an Enduring Power of Attorney mean my attorney will have unlimited power over my personal affairs?

There are two types of Enduring Powers of Attorney (EPAs) in New Zealand. These are:

• EPAs in relation to your Property; and
• EPAs in relation to your Personal Care and Welfare.

If you are over the age of 18, having EPAs in place in case of an unforeseeable event occurring in the future (such as losing your mental capacity due to an accident or an illness) is certainly a wise decision and a better alternative to your potential attorney having to make an application to the Family Court to act for you after you have lost your mental capacity. With that being said, have you ever wondered whether an attorney might have unlimited power over your personal affairs?

Will my attorneys be free to do whatever they want regarding my personal affairs?

There are certain things that your attorney will not be able to do for you such as:

• act for the benefit of themselves or others (unless you have explicitly allowed this in your EPA);
• commit you to a marriage or civil union;
• dissolve your marriage or civil union relationship;
• consent to the adoption of your children;
• refuse consent to any standard medical treatment or procedure when such treatment or procedure could save your life or prevent serious damage to your health; or
• consent to:
  • any behavioural changing surgery or treatment of your brain, including electro-convulsive treatment; or
  • you participating in a medical experiment not having the purpose of saving your life or preventing serious damage to your health.

I would like my attorney to act for me only in certain aspects of my personal affairs – is this possible?

If you would like your attorney to be able to act only in relation to certain aspects of your affairs,  you can do this by specifying those aspects when setting up your EPAs. If you want to impose terms, conditions and/or restrictions on certain things, you can also do this by specifying these when setting up your EPAs.

In general, your attorney must promote and protect your best interests (and your welfare when it comes to your personal care matters). Having an Enduring Power of Attorney does not mean your attorney will be free to do whatever they want regarding your personal affairs. You can specify what your attorney can or cannot do and your attorney’s actions may be challenged by others (including yourself and your relatives) via the court.  So have a think about who you might like to appoint as your attorney, whether there are any conditions or restrictions you might like to impose and consider setting up EPAs in preparation for the unforeseeable future.

This article is current as at the date of publication and is only intended to provide general comments about the law. Harkness Henry accepts no responsibility for reliance by any person or organisation on the content of the article. Please contact the author of the article if you require specific advice about how the law applies to you.