Power of attorney must be arranged by ‘donor’

Court process can be complex

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.