Enduring Power of Attorney in New Zealand: The Two Types Explained

An enduring power of attorney (EPA) lets someone appoint a trusted person to make decisions on their behalf if they later become mentally incapable. New Zealand law recognises two separate types, one for property and one for personal care and welfare, and they do not automatically take effect at the same time or in the same way.

This is general information about New Zealand law, not legal advice. For your own situation, consult a lawyer or your local Community Law centre.

What an enduring power of attorney is

An enduring power of attorney is a legal document made under the Protection of Personal and Property Rights Act 1988 that lets a person, the donor, appoint one or more attorneys to make decisions on their behalf. Unlike an ordinary power of attorney, an EPA is designed to continue, or endure, even after the donor loses the mental capacity to make those decisions themselves. Because the whole point of an EPA is to plan ahead, it must be made while the donor still has the capacity to understand what they are signing.

The two types of EPA

New Zealand law separates an EPA into two distinct documents that cover different areas of a person's life. A property EPA gives the attorney authority over the donor's money, property, and other assets, such as paying bills, operating bank accounts, and managing investments. A personal care and welfare EPA gives the attorney authority over decisions about the donor's care, health, and welfare, such as where they live and their medical treatment. A person can set up one type, or both. Because the two documents cover different areas and take effect differently, setting up only one leaves a gap in the other area.

When a property EPA takes effect

A property EPA is flexible about timing. When it is set up, the donor chooses whether it takes effect immediately, meaning the attorney can act on the donor's behalf straight away and continue to do so if the donor later becomes mentally incapable, or whether it only takes effect once the donor is certified as mentally incapable, generally by a health practitioner or, in some cases, a determination of the Family Court. Some donors choose the immediate option for practical reasons, such as being overseas or otherwise unavailable, rather than because they expect to lose capacity soon.

When a personal care and welfare EPA takes effect

A personal care and welfare EPA works differently. It has no effect and the attorney has no power to act until the donor has been assessed by a suitably qualified health practitioner as mentally incapable of making decisions about their own care and welfare, or of communicating those decisions. Signing the document does not activate it. Generally only one attorney can be appointed under a personal care and welfare EPA, unlike a property EPA, which can appoint more than one.

How an EPA is set up

An EPA must be signed by the donor and witnessed. The witness must be an independent lawyer, a qualified legal executive, or an authorised officer or employee of a trustee corporation, and cannot be the attorney named in the document. Before witnessing it, that person must explain the EPA's effects and implications to the donor, and be satisfied the donor understands, in general terms, what an EPA is and that it gives the named attorney authority to make decisions on their behalf. An attorney generally must be at least 20 years old, must not be an undischarged bankrupt, and must not be subject to certain court orders relating to their own personal care or property.

Why both matter

Because a property EPA and a personal care and welfare EPA cover different decisions and can take effect at different points, having only one in place can leave a gap. Someone with a property EPA that has not yet been activated, or no personal care and welfare EPA at all, may find that no one has clear legal authority to make welfare decisions for them if they suddenly become unable to make those decisions themselves. If no valid EPA is in place when it is needed, the Family Court can become involved, including appointing a welfare guardian or property manager, which is generally a longer and more involved process than acting under an EPA that was already set up.

Related New Zealand wills and estates topics

An enduring power of attorney only operates while the donor is alive. For what happens to a person's property after death, see making a will and probate. For more on wills, powers of attorney, and estates in New Zealand, see the wills and estates guide.