Enduring Power of Attorney in New Zealand — What it is, and why it matters more than most people realise

What an Enduring Power of Attorney actually is

An EPOA is a legal document that sets out who can take care of your personal or financial matters if you can't.

The person you appoint is called your attorney — they don't need to be a lawyer, just someone you trust deeply to act in your best interests.

A regular power of attorney ceases to have effect when you lose mental capacity. An EPOA, by contrast, is specifically designed to look after your affairs when you lose that capacity. That distinction is everything.

There's a common and understandable assumption that a partner or close family member will automatically be able to step in if something goes wrong. Many people assume that if they lose the ability to make decisions for themselves, their partner or a close relative will legally be able to make decisions for them. In fact, the law doesn't work like that.

The two types of EPOA — and why you likely need both

There are two types of EPOA in New Zealand. A Property EPOA authorises your attorney to manage your financial and property affairs — you can choose for it to take effect either immediately or only if you lose mental capacity. The attorney's duties might include managing bank accounts, paying bills, and making decisions about property.

A Personal Care and Welfare EPOA gives your attorney the power to make decisions relating to your health and welfare, such as choosing a rest home, your level of care, or medical treatment.

You can only have one attorney for a personal care and welfare EPOA, but as many attorneys as you need for a property EPOA. Some people appoint the same trusted person for both; others choose different people depending on who is best placed for each role.

What happens if there is no EPOA in place

This is the part that often catches families off guard — and it can arrive at the worst possible moment.

By law, relatives cannot access your money even if it is to pay for essential care and treatment.

Hospitals do not legally have to release information about patients to their family members or caregivers, and institutions such as banks, insurance and power companies are reluctant to engage with anyone else unless there is signed authority.

If a person does not have an EPOA in place and loses capacity, the law provides for the appointment of a welfare guardian or a property manager through a court application. If someone becomes mentally incapacitated without having an EPOA in place, concerned family members or other interested parties must apply to the Family Court.

These applications are typically more complex, time-consuming, and costly than setting up an EPOA in advance.

The one thing people often get wrong — EPOAs end at death

Many families navigating a death discover, with some confusion, that the EPA they relied on during their loved one's illness no longer has any legal force.

A power of attorney, whether ordinary or enduring, automatically ends as soon as the person who made it passes away. This means the attorney no longer has legal authority to access bank accounts, sell property, make financial decisions, or manage affairs on behalf of the person who has died.

Once the person dies, their EPOAs become void and the attorney or attorneys no longer have the power to act on their behalf. The power to make decisions in relation to the estate passes to the executors, to administer the estate in accordance with the directions set out in the will.

This is why an EPOA and a will are not interchangeable — they serve completely different seasons of a person's life. The EPOA is effective until you die. When you die, your will takes over. You need both.

You can only set up an EPOA while you have capacity — and that window can close without warning

This is perhaps the most important thing to understand. You can only set up an EPOA when you have mental capacity. Once you've lost capacity, or if you become sick suddenly, it's too late — and your loved ones are forced to deal with the Family Court to make any decision about caring for your needs.

Capacity can be lost in an instant — through a stroke, an accident, a sudden diagnosis. To be valid, an EPOA must be advised on by a lawyer or registered legal executive while you have mental capacity. There is no workaround. The door simply closes.

How to get an EPOA set up

You can set up an EPOA through a lawyer or trustee corporation. Organisations like Public Trust and Perpetual Guardian offer this service, as do most general practice law firms across New Zealand.

Whether you use an online service or another provider, you will still need to visit a lawyer or trustee corporation to arrange the signing and witnessing — it is their job to make sure you understand what the EPA means, what it will do, and the responsibilities of your appointed attorney.

Some lawyers offer their services at a discounted rate to SuperGold card holders, and community law centres may be able to provide free advice if cost is a concern. Fees vary between providers, so it is worth asking for a quote before you begin.

Choosing your attorney

Your attorney doesn't need to be a professional — an attorney does not need to be a lawyer but should be someone that you trust to do the right thing for you. Think carefully about who has the time, the emotional resilience, and the practical ability to act in your corner if the time comes.

Your attorney must act in your best interests at all times. The law sees the EPOA as a relationship of special trust — a fiduciary relationship — which requires your attorney to act with absolute openness and fairness towards you, exercise reasonable care, and avoid any conflict of interest.

Getting an EPOA in place is one of the most considered things you can do for the people who love you. It means that if something unexpected happens — and none of us know when that might be — the people who would do anything for you are also legally able to.

If you're not sure where to start, our planning ahead guide walks you through the process step by step — at your own pace.

Circumstances vary. Verify specific details directly with the relevant organisation before acting.

Written and reviewed with care by BesideYou.

Sources

• New Zealand Ministry of Justice: The court and enduring power of attorney (EPOA)
• New Zealand Government: Create an enduring power of attorney
• New Zealand Government: Wills, probate and estates
• New Zealand Law Society Te Kāhui Ture o Aotearoa: Powers of Attorney
• Age Concern New Zealand: Enduring Power of Attorney
• New Zealand Legislation: Protection of Personal and Property Rights Act 1988