About this Guide

This Guide introduces Enduring Power of Attorneys, discusses the alternative to Enduring Power of Attorneys, provides information about making and maintaining Enduring Power of Attorneys and contains information for “attorneys”.

What is an Enduring Power of Attorney?

Enduring Power of Attorneys are documents that the maker (“you”) signs now, whilst the maker is mentally capable, so that in the future, when the maker are not mentally capable, they have some certainty about who will be making decisions on their behalf, what sorts of decisions those people can make and how those people will be allowed to make such decisions.

There are two types of Enduring Power of Attorney. You may appoint a property attorney and/or a care and welfare attorney(C&W attorney). Your property attorney manages your property. Your Care and Welfare attorney manages your care. Neither attorney has to be a lawyer. An attorney means someone who is appointed to act for someone else in business or legal matters.

The key feature of an Enduring Power of Attorney is that it is still effective when you become mentally incapable of looking after yourself and your property. You may choose for your property Enduring Power of Attorney to come into effect—

• (a) Immediately after signing it, such that it continues to be valid when you become mentally incapable; or
• (b) Only when you become mentally incapable.

Care and Welfare Enduring Power of Attorneys may only come into effect if (b) applies. Usually, Enduring Power of Attorney-makers choose to have both types of Enduring Power of Attorneys to come into effect only when they become mentally incapable.

Your attorneys, if they are different people, may have to work together. For example, your Care and Welfare attorney may work with your property attorney to obtain private healthcare if doing so is in your best interests. They will also try to work alongside you, as much as that is possible.

Example 1. A became incapacitated in a skiing accident. A signed two Enduring Power of Attorneys a couple years before the accident appointing their partner, B, to be A’s property attorney and Care and Welfare attorney. A was unconscious for a few days during which time B acted as A’s Care and Welfare attorney to work through A’s care with A’s doctors. B did not need to use any of B’s powers as property attorney. When A regained consciousness and mental capacity, B ceased to make decisions on A’s behalf.

Example 2. A’s partner, B, was A’s attorney under two Enduring Power of Attorneys (a property and Care and Welfare Enduring Power of Attorney). A made the Enduring Power of Attorney before they lost capacity due to dementia. A’s Enduring Power of Attorney appointed their child, C, as the “successor attorney”***. When B suddenly died, C immediately took over B’s role as A’s attorney.

The Alternative: PPPR (Protection of Personal and Property Rights) Orders

If you do not have an Enduring Power of Attorney in place, then no one is automatically allowed to step up to begin making decisions for you. Arranging care and property arrangements for you involves a complex process at the Family Court that is best avoided.

The next of kin does not automatically have the same decision-making ability as an attorney when the incapacitated person has not made an effective Enduring Power of Attorney. Doctors may not listen to next of kin who have not been appointed under an Enduring Power of Attorney or appointed by the Family Court.

Applications for PPPR orders are often “contested”—that is, multiple family members often argue over who should be appointed to be the incapacitated person’s “welfare guardian” (the rough equivalent of a C&W attorney), their “property manager” (the rough equivalent of a “property” attorney) or their “property administrator” (someone who manages just one, small item of property). However, instead of the incapacitated person getting to choose the who, what and how of the care and management arrangements (as in where they have made an Enduring Power of Attorney), it is the Family Court that gets to choose the who, what and how in the care arrangements under a PPPR order.

The next of kin should seek legal help if they wish to be appointed welfare guardian or manager.

You can find out more about PPPR orders here:

• A Guide to Making Applications under the PPPR Act (this resource is slightly outdated, but it is comprehensive); and
• Community Law’s Website.

Making an Enduring Power of Attorney

Should I make an Enduring Power of Attorney?

Yes. Every eligible person should make an Enduring Power of Attorney, regardless of their age or circumstances.

Enduring Power of Attorneys are designed for situations in which you are incapacitated, whether foreseen or not (see the above examples). They are especially important in unforeseen situations where you and your family have not had time to prepare.

The benefits and risks of creating an Enduring Power of Attorney are presented below. Consider how you might minimise the risks.

Benefits	Risks
Simplifies the process for your family when you lose capacity. Customisable: you may limit the powers. Accountability: you may appoint multiple property attorneys, and you may require all attorneys to consult, both to increase accountability.	Makes you vulnerable to mistreatment or economic/financial abuse. You may limit the powers too much or fail to clearly express your preferences. Your Enduring Power of Attorney may become out of date: the arrangements you once made may no longer reflect your preferred arrangements now.

Am I allowed to make an Enduring Power of Attorney?

To be eligible to make an Enduring Power of Attorney, you must be at least 18 years old and mentally capable.

What should I think about before and while making my Enduring Power of Attorney?

Who can be my attorney?

You may appoint any individual to be your attorney, except for the following people (PPPRA, section 95(3)):

• People under 20 years old at the time you make your Enduring Power of Attorney;
• People who are bankrupt at the time you make your Enduring Power of Attorney; and
• People who are not mentally capable themselves at the time you make your Enduring Power of Attorney.

Even though someone you appoint might not come within any of these categories at the time you sign your Enduring Power of Attorney, these conditions may stop someone from acting as your attorney if they exist when you lose mental capacity (PPPRA, section 106). You should appoint successor attorneys in case your first choice of attorney is unable to act for you.

A trustee company may also be your attorney.

You may have multiple property attorneys at the same time, but only one Care and Welfare attorney at the same time.

If you choose to have multiple property attorneys, you may say that they must act “jointly” (together) and/or that they may act “severally” (individually).

You may choose an attorney to be both your property attorney and your Care and Welfare attorney.

Example. A validly appoints someone, B, to be their attorney under two Enduring Power of Attorneys. B is adjudged bankrupt, and then a couple of months later, A loses mental capacity. B cannot act as A’s attorney. Fortunately, A validly appointed another, C, to be their successor attorney under both Enduring Power of Attorneys. Nothing stops C from acting as A’s attorney, so C is able to act as A’s attorney.

What powers does my attorney have?

You get to choose the scope of your attorney’s powers.

You may, for example, choose for your property attorney to act generally or specifically in relation to all or only some parts of your affairs (PPPRA, section 97). The standard form allows you to choose amongst the following options:

“My attorney can act on my behalf on: (tick one)

• all my property affairs
• only the part of my property affairs I have specified: [specify part(s)]
• only the following specified things: [specify thing(s)]

My attorney’s authority to act is subject to the following conditions and restrictions: (optional) [write any conditions or restrictions].”

The same is true of your Care and Welfare attorney. On the standard form, you may choose amongst the following:

“My attorney can act on my behalf on: (tick one)

• all my personal care and welfare matters
• only the matters relating to my personal care and welfare I have listed: [list matter(s)]

My attorney’s authority to act is subject to the following conditions and restrictions: (optional) [list any conditions or restrictions].”

You can require that your attorneys (of both types) consult with people or provide information to people of your choosing.

How can I make an Enduring Power of Attorney?

There are two key steps to making an Enduring Power of Attorney

• (1) Your Enduring Power of Attorney must be in the “prescribed form”;
• (2) Your Enduring Power of Attorney must comply with formalities (including being witnessed by a legal professional).

Because your Enduring Power of Attorney must be witnessed by a legal professional, it is best practice to consult a lawyer (or the Public Trust) to complete the whole process with you from beginning to end. They will likely also want to ensure that your will is in order. It is a convenient opportunity to review your will, if any, at this time.

Writing your Enduring Power of Attorney in the prescribed form

You may prepare your Enduring Power of Attorney by yourself using Te Tari Kaumātua’s DIY forms:

• Enduring Power of Attorney in relation to personal care and welfare including witness certificate (.pdf format);
• Enduring Power of Attorney in relation to property including witness certificate (.pdf format); and

You can obtain .docx formats from this link if you wish to fill in your forms using Microsoft Word. You will have to do this if you want to:

• Write more in the space than the default sizes allow you to (by increasing the size of the spaces);
• Appoint more attorneys or successor attorneys than the form allows you to by default (you may copy, paste and modify the relevant sections, and do not forget the corresponding signature and witness sections); or
• Require your attorney(s) to consult or provide information to more people than the form allows you to by default (you may copy, paste and modify the relevant sections).

The witness certificates at the end of the Enduring Power of Attorney document will be used by the legal professional to complete the execution process.

If you want both types of Enduring Power of Attorney, you should complete both forms.

You should read and understand all the information in the forms before filling in the forms. You may supplement your understanding with the information contained within this Guide and the additional information linked at the end of this Part.

If you misunderstand any part of the form or the role of attorney, you may wish to fill in the form with the help of the legal professional.

Formalities

If you have chosen to write your Enduring Power of Attorney(s) yourself, you need to engage one of the following to properly witness and help execute your Enduring Power of Attorney(s):

• A lawyer;
• A law firm; or
• A trustee company (the Public Trust or Māori Trustee, for example).

While all lawyers are qualified to help you, a law firm or trustee company may provide you with a non-lawyer (with other qualifications) to help you. Ensure you notify them that you want them to help you complete an Enduring Power of Attorney you have prepared for yourself.

Your attorney(s) (including your successor attorneys, if any) must also sign in the presence of a witness, not being yourself or the professional witness who helped you sign your Enduring Power of Attorney(s).

Example. A and B, spouses, decide to write Enduring Power of Attorneys appointing each other as their attorneys. They engaged a law firm, to help them write and sign their Enduring Power of Attorneys. The lawyer, C, and an associate, D, helped A and B on the day. C acted as the legal professional and witnessed A’s signature on A’s Enduring Power of Attorney and B’s signature on B’s Enduring Power of Attorney. D witnessed B’s signature on A’s Enduring Power of Attorney and A’s signature on B’s Enduring Power of Attorney. The Enduring Power of Attorneys comply with the formalities.

	A's Enduring Power of Attorney	B’s Enduring Power of Attorney
A’s signature	A legal professional has to witness A sign their own Enduring Power of Attorney and explain the effects of the Enduring Power of Attorney. C is such a person.	Any person that is not B or C may witness A’s signature as an attorney on B’s Enduring Power of Attorney. D is such a person.
B’s signature	Any person that is not A or C may witness B’s signature as an attorney on A’s Enduring Power of Attorney. D is such a person.	A legal professional has to witness B sign their own Enduring Power of Attorney and explain the effects of the Enduring Power of Attorney. C is such a person.

Who should have a copy of my Enduring Power of Attorney

You should distribute a copy of your Enduring Power of Attorney to all your attorneys and successor attorneys. If you have nominated separate people to be each type of attorney, it is best practice to give all attorneys (including successor attorneys) both Enduring Power of Attorney documents so that they may cooperate when they need to.

You should also give a copy to your significant other and other close family members. Store your own, original copy, amongst your important documents.

Advanced Care Plan

If you make an Enduring Power of Attorney, you might consider whether you also want to prepare an Advanced Care Plan. An Advanced Care Plan allows you to lay out your wishes and preferences for your care whilst you are still able to lay them out. They are not just for end-of-life arrangements—you may also wish to lay out your wishes in case of sudden illness or accident.

You can find out more information about making an Advanced Care Plan here:

Resource	Description
Tō Tātou Reo | Advance Care Planning	This resource can help you make an Advanced Care Plan.
ACP form	This resource is a part of the above resource. It is a form for you to fill in, and it considers all the matters that should be contained within an Advanced Care Plan
Citizens Advice Bureau	This resource has some basic information about “living wills” (that is, Advanced Care Plans).
Health and Disability Commissioner	This resource does the same as the CAB’s resource.

What if I have property located overseas?

Your New Zealand Enduring Power of Attorney is not necessarily valid outside of New Zealand. If you have (substantial) property overseas, you should make an Enduring Power of Attorney in each country where you have property. You can find some information about different jurisdictions below:

• Australia (NSW, Qd, Vic, WA); and
• United Kingdom (“Lasting Powers of Attorney”, LPA).

As in Australia, the laws differ in the states/provinces of the United States and Canada. In relation to the states of the United States, you may search for “springing power of attorney” and “durable power of attorney” alongside “enduring power of attorney”. In relation to Canadian provinces, you may search for “continuing power of attorney” alongside “enduring power of attorney”. Ensure that you understand the differences in these types of arrangements—they do not necessarily work the same way as Enduring Power of Attorneys in New Zealand.

Different jurisdictions have different requirements. Ensure you read and understand the information about each jurisdiction before filling out any forms and before seeking legal advice.

Changing, suspending and cancelling an Enduring Power of Attorney

Changing an Enduring Power of Attorney

You may alter your Enduring Power of Attorney by cancelling your existing Enduring Power of Attorney and making another one. You can do both these things by completing Part B (and all the other parts) of a new standard Enduring Power of Attorney form. You must give the old attorney(s) a copy of the new Enduring Power of Attorney to ensure the old one is cancelled, including if you re-appoint an old attorney as a new attorney on different terms. (PPPRA, section 95A.)

The idea is that your attorneys can only know that they are no longer allowed to take action under a cancelled Enduring Power of Attorney unless they have seen the new Enduring Power of Attorney cancelling the cancelled Enduring Power of Attorney.

Example. A has Enduring Power of Attorneys appointing her ex-husband, B, as her attorney. After she remarries to C, she creates new Enduring Power of Attorneys appointing C as her attorney. In her new property Enduring Power of Attorney, she ticks “I revoke all previous Enduring Power of Attorneys in relation to my property that I may have given except those specified below (if any)”, and she does not “specify any below”. She does the same on her Care and Welfare Enduring Power of Attorney. A signs her new Enduring Power of Attorneys properly and gives B a copy of both new Enduring Power of Attorneys. The new Enduring Power of Attorneys now replace the old Enduring Power of Attorneys.

Suspending an Enduring Power of Attorney

If your attorney begins acting under an Enduring Power of Attorney because you become mentally incapable, and you then regain mental capability, you may “suspend” the Enduring Power of Attorney by writing to your attorney that the power is suspended (PPPRA, section 100A). Suspending the power only stops the attorney from acting now. The Enduring Power of Attorney will kick in again in the future if and when you become mentally incapable again.

You must use this form.***[Link to NZLII suspension form].

Cancelling an Enduring Power of Attorney

If you wish only to cancel (“revoke”) your Enduring Power of Attorney without replacing it, you may write to the attorney that the power or the appointment is revoked whilst mentally capable (PPPRA, section 106). You should write to all of your attorneys under the Enduring Power of Attorney you wish to cancel (see PPPRA, section 106A).

You must use this form.***[Link to NZLII cancellation form]

Further Information

A lot of information is contained within the Schedule to the Protection of Personal and Property Rights (Enduring Powers of Attorney Forms and Prescribed Information) Regulations 2008. Here, you can find all the forms you need. However, they are in an inaccessible format.

Helpfully, Te Tari Kaumātua provides additional information and has organised the information in the Schedule into individual, ready-to-use forms:

• EPA in relation to personal care and welfare including witness certificate;
• Explanation of EPA in relation to personal care and welfare;
• EPA in relation to property including witness certificate; and
• Explanation of EPA in relation to property.

The explanation forms are designed for the qualified witness to tell you about the effects of each type of Enduring Power of Attorney. However, they are useful for you if, at this stage, you are contemplating creating an Enduring Power of Attorney.

Information for Next of Kin

Next of kin do not automatically have the same decision-making powers as attorneys.

Next of kin only have these powers if they:

• Are appointed an attorney under an Enduring Power of Attorney; or
• Are given powers under a Protection of Personal and Property Rights order

A Protection of Personal and Property Rights order requires an application to the Family Court. You, the incapacitated person’s next of kin, will need to apply to the Family Court if the incapacitated person does not have an attorney and you wish to make decisions on their behalf. You should seek legal advice if this is the case.

-- Main.JudiEathorneGould - 22 January 2025