Types of en­dur­ing power of at­tor­ney

Kapi-Mana News - - OUT & ABOUT - ALAN KNOWSLEY LE­GAL MAT­TERS

There are two types of en­dur­ing pow­ers of at­tor­ney, one for per­sonal care and wel­fare and one for prop­erty.

It is rec­om­mended that you have both of th­ese in place. You can ap­point the same per­son, or dif­fer­ent peo­ple, to act for you when the par­tic­u­lar needs arise.

Per­sonal care and wel­fare

The per­son who you ap­point as your per­sonal care and wel­fare at­tor­ney would be re­spon­si­ble for mak­ing de­ci­sions about you ‘‘per­son­ally’’.

This could in­clude, for ex­am­ple, where you live and when you re­quire rest home care, con­sent­ing to med­i­cal treat­ment and even de­cid­ing the clothes you wear.

It is im­por­tant to note that a per­sonal care and wel­fare at­tor­ney can only be used if you have lost men­tal ca­pac­ity.

You can only ap­point one per­son at a time to be your at­tor­ney for per­sonal care and wel­fare, but you can ap­point a sub­sti­tute at­tor­ney if that first at­tor­ney was un­able to act for you for some rea­son.

Prop­erty

A prop­erty at­tor­ney would man­age your fi­nan­cial af­fairs and deal with your prop­erty on your be­half.

You would need to choose whether this comes into ef­fect im­me­di­ately and can be used while you are men­tally ca­pa­ble (in ac­cor­dance with your in­struc­tions, of course) and will con­tinue to re­main in force if you lose men­tal ca­pac­ity, or whether it can only be used if you lose men­tal ca­pac­ity.

You can ap­point more than one per­son to be your at­tor­ney for prop­erty mat­ters if you wish and you can also ap­point a sub­sti­tute at­tor­ney.

You can also state whether you want your at­tor­ney to ben­e­fit any per­son other than your­self - for ex­am­ple, sup­port­ing your mi­nor chil­dren.

There are many ad­di­tional con­di­tions you can im­pose on your at­tor­ney, in­clud­ing the re­quire­ment to con­sult or pro­vide in­for­ma­tion to other nom­i­nated peo­ple.

If you lose men­tal ca­pac­ity with­out hav­ing th­ese doc­u­ments in place, those who care for you and want to make de­ci­sions for you would need to ap­ply to the court to be ap­pointed as a prop­erty man­ager and/or a wel­fare guardian.

This is ex­pen­sive, time con­sum­ing, and causes even more stress in what is gen­er­ally al­ready a highly stress­ful and emo­tional time for your fam­ily. Even more con­cern­ing is that you would have no con­trol over who ap­plies to the court and the court could ap­point some­one to take care of you and your fi­nances that you would not have cho­sen your­self.

Your en­dur­ing pow­ers of at­tor­ney are re­quired by law to be wit­nessed by a lawyer, an ap­pro­pri­ately qual­i­fied reg­is­tered le­gal ex­ec­u­tive, or an em­ployee of a trustee cor­po­ra­tion that is in­de­pen­dent of the at­tor­ney, so you are un­able to pre­pare th­ese doc­u­ments your­self.

En­dur­ing pow­ers of at­tor­ney are not au­to­mat­i­cally re­voked by mar­riage, sep­a­ra­tion or divorce.

As it is un­likely you will want your ex to still have pow­ers to make de­ci­sions about your af­fairs you need to re­voke your en­dur­ing pow­ers of at­tor­ney upon sep­a­ra­tion.

The re­vo­ca­tion must be com­pleted in writ­ing and de­liv­ered to the per­son ap­pointed as your at­tor­ney.

There is a spe­cific form for this no­tice and a new en­dur­ing power of at­tor­ney does not au­to­mat­i­cally re­voke an ear­lier one.

Col­umn cour­tesy of Rainey Collins Lawyers phone 0800 733 484 www.rain­ey­collins.co.nz

If you have a le­gal in­quiry you would like dis­cussed in this col­umn email Alan on aknowsley@rain­ey­collins. co.nz

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