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Get your affairs in order, while you still can!

Enduring powers of attorney require you to have mental capacity to sign. Ensure you have your affairs in order sooner rather than later to avoid undue stress and complications in the future.

There are two kinds of Enduring Powers of Attorney (EPAs); one deals with your personal care and welfare, the other deals with your property. Your personal care and welfare EPA can only come into effect once you have lost your mental capacity. Your property EPA may, if you so choose, come into effect upon signing. This allows your attorney to make decisions in relation to your property for you while you are still mentally capable; if you are for any reason unable to attend to those matters. For EPAs to be valid, the donor of that power must have mental capacity at the time of signing.

It is common for an Occupation Right Agreement for a retirement village to require the occupant to have valid EPAs. This can be problematic for clients wanting to move into retirement care who have been medically assessed as not having the mental capacity required to sign an EPA.

Recently, a client of ours was in the process of applying for an Occupation Right Agreement for residence in one of Waikato’s Retirement Villages, however, after we had pointed out that they would need enduring powers of attorney, a medical assessment determined that they did not have the mental capacity required to sign.

As a result, a court order will need to be made under the Protection of Personal and Property Rights Act 1988 for the appointment of a welfare guardian and property manager; which will be costly, stressful and time consuming. In contrast, drafting enduring powers of attorney is a relatively simple and low cost process.

This story serves as an important reminder to ensure you have up to date enduring powers of attorney well before any anticipated change in your circumstances.

EPAs are not only relevant for the elderly wanting to move into retirement care, they are effective tools for people of all ages. If you have a specific family member or friend in mind who you trust to make decisions in relation to  your property and personal care and welfare, you should consider granting EPAs to provide both flexibility in the management of your affairs now and a mechanism for dealing with any event that may affect your ability to manage your affairs in the future.

Understandably, many of us are hesitant to think about what will happen if tragedy strikes. EPAs take some of the worry out of the equation for both you and your family. If you need EPAs, our team is available to provide further advice and answer any queries you might have

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.

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Patrick Steele

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