Power of at­tor­ney must be ar­ranged by ‘donor’

Court process can be com­plex

Kapi-Mana News - - INSIGHT/NEWS -

The other day a client started the in­ter­view by say­ing “Dad’s get­ting pretty vague and needs stuff do­ing for him, so I came in to get a power of at­tor­ney”. It’s not un­com­mon for clients to make re­quests like this but as they con­tain a num­ber of mis­taken as­sump­tions it seems like a good idea to set the record straight.

Firstly, you don’t ‘‘get’’ a power of at­tor­ney for some­one else. If dad de­cides he wants or needs to have things done on his be­half then he gives some­one his power of at­tor­ney.

He is the ‘‘donor’’, the one grant­ing the power, and he’ll have to make his in­struc­tions clear in the doc­u­ment.

Then there’s the is­sue of him “get­ting pretty vague”. As far as the law is con­cerned, a power of at­tor­ney is a big deal be­cause the at­tor­ney (the one who is given the power) gets to do things that pre­vi­ously only the donor could do – ac­cess bank ac­counts, en­ter con­tracts, sell prop­erty.

So if a le­gal ad­viser has doubts about the donor’s ca­pac­ity to fully un­der­stand the na­ture and ef­fect of grant­ing a power of at­tor­ney, then it can’t be done.

The good news for peo­ple want­ing to as­sist an el­derly or in­firm rel­a­tive is that this is not the end of the story. The bad news is that from here on it does get more com­pli­cated. Who­ever is want­ing to help will need to ap­ply to the Fam­ily Court un­der the Pro­tec­tion of Per­sonal and Prop­erty Rights Act 1988. They need to ex­plain the sit­u­a­tion in a sworn state­ment sup­ported by a doc­tor’s cer­tifi­cate de­scrib­ing the health of the sub­ject per­son.

The court will then try to bal­ance the rights of that per­son against the need for them to have as­sis­tance and ap­pro­pri­ate care, and may make an or­der.

There may be Fam­ily Le­gal Aid (fi­nan­cial as­sis­tance) avail­able for such a court ap­pli­ca­tion, es­pe­cially if the older per­son is on a pen­sion, and this can pay a lawyer to draft the ap­pro­pri­ate doc­u­ments.

The best way to avoid the more com­pli­cated pro­ce­dure is by plan­ning ahead: Ev­ery fam­ily needs to con­sider what may hap­pen if one of the more se­nior mem­bers can no longer give in­struc­tions about their af­fairs or their per­sonal care. This may not nec­es­sar­ily be the re­sult of them ‘‘los­ing their mar­bles’’ to use a col­lo­quial phrase. Peo­ple can lose the abil­ity to ef­fec­tively com­mu­ni­cate as a re­sult of ill­ness or in­jury.

But if some­one has granted an En­dur­ing Power of At­tor­ney (EPA) then most sit­u­a­tions are cov­ered. An EPA is specif­i­cally de­signed to give ef­fect to the donor’s wishes when the donor can no longer (legally) speak for them­selves. Most rest homes and aged-care fa­cil­i­ties will want to know that the per­son be­ing taken into care has an EPA in place since they need a ‘‘go to’’ per­son in the event of an emer­gency.

We will be happy to dis­cuss the mat­ter with you, pro­vide you with a re­source that ex­plains the steps, and re­fer you to some­one.

Whi­tireia Community Law Cen­tre is open 9am till 4pm, Mon­day to Fri­day, with a late night clinic at the Cit­i­zens Ad­vice Bureau (Pem­ber House) on Thurs­day, 5pm till 7pm. Our ser­vices are free for ben­e­fi­cia­ries and Community Ser­vice card hold­ers. Chris El­lis is a se­nior staff so­lic­i­tor at Whi­tireia Community Law Cen­tre.

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