EPAs & the Protection of Personal & Property Rights Act

30 May 2024

There are only two certainties in life: you are born and you die. What happens between these two dates is down to the decisions you make, luck and misfortune. It’s an uncomfortable truth, but the reality is people are rarely adequately prepared for misfortune. Only half of New Zealand’s adults have made a Will, and based on data from the Public Trust, it’s estimated that only 17% of New Zealanders have an Enduring Power of Attorney (EPA).

 

People often only realise the value of these life-planning documents when it’s too late. There tends to be an assumption the only thing they need to do in terms of preparing for the worst is to write a Will. The logic behind this being that should they lack capacity and be deemed incapable of making decisions, their next of kin, (whether that’s a partner, child, or parent) can automatically legally make decisions for them and manage their affairs. Unfortunately, this assumption is incorrect, and often only comes to light at times of crisis. Noone, including family members, can lawfully make decisions for another person over 18 years old without permission from the Family Court.

 

What is meant by lack of capacity?

While there is no single legal definition of capacity in New Zealand law, capacity refers to an individuals’ ability to make decisions or take actions that influence their lives. If someone lacks capacity, they cannot understand the nature or foresee the consequences of their decisions or be unable to communicate them and/ or no longer fully competent to manage their own money or property.


An elderly couple is sitting on a couch looking at a piece of paper.

Making decisions you do not agree with or living their life in a way that you believe is not right, are not grounds for a Court order to make an order. It is not enough for relatives or loved ones to simply state a person does not have capacity, there is legal process to follow and an assessment to undertake. Courts are sensitive to as to whether an individual is competent to make a decision or they are bending to pressure from others, this is called undue influence.

 

How do you proactively prepare for potential misfortune? The first step is to make an appointment with Weston Ward and Lascelles’ lawyers in Christchurch, you will need legal advice. Our experienced Wills and Estate lawyers advise clients what information should be included and the decisions they must make. It can feel overwhelming just thinking about it, but with the best legal advice, you will be able to govern how future you will be cared for and supported with an application under the Protection of Personal and Property Rights Act 1988.


The Protection of Personal and Property Rights Act, what does it do?

Also known as the PPPR Act, the Protection of Personal and Property Rights Act 1988, is designed to protect the personal, financial and property rights of people who are not fully capable of managing their own affairs and lack capacity. The PPPR Act allows the Family Court to make orders for the appointment of welfare guardians and property managers, and to grant Enduring Powers of Attorney (EPAs) to protect those who do not have capacity.


What is an Enduring Power of Attorney?

The best way of protecting your future health and wealth is to have an Enduring Power of Attorney in place. An Enduring Power of Attorney is a legal document confirming who can take care of your personal or financial matters should you no longer have capacity. 



A man and an elderly woman are sitting at a table looking at a tablet.

EPAs are not exclusively relevant to seniors. Capacity can be diminished for a host of reasons. If a person is mentally unwell, intellectually disabled, has dementia, becomes gravely ill or has a serious accident that impacts their mental capacity, they may no longer be able to make decisions for themselves. While no one likes to think about these scenarios, it’s important to take control of all eventualities before an emergency situation arises. It’s critical to note, EPAs can only be made when the person has capacity and fully understands what they are asking for.


There are two different types of Enduring Power of Attorney:


Personal Care and Welfare EPA: the person you appoint to advocate for your health and wellbeing is called your attorney. They can make decisions about where you live, medical treatment or who will care for you if you become incapable to do so. Should circumstances change and your attorney can no longer fulfil the role, a successor attorney can also be named. You can state the areas you wish the attorney to act for you in – it’s customisable to meet your wishes.


Property EPA: you can appoint one or more people or even a trustee company as your property attorney to manage your finances and property. You can state when they can act for you (you may want immediate help or wish to limit representation to a time should you lose mental capacity) and whether they act in a general or in a restricted way (such as authority limited to specific bank accounts etc).


What happens if you do not have an Enduring Power of Attorney?

  • You do not have choice or control over future medical and care decisions.
  • You do not have choice or control over your property and finances.
  • You do not have choice as to who makes decisions about your health and You do not have choice or control as to who controls your finances and property.


For the 83% of New Zealanders who do not have an EPA in place and have not nominated anyone to look after their affairs should they lose capacity, there are tough times ahead. When capacity is unpredictably lost, it is typically due to sudden illness or an accident. Hospitals do not legally have to release information about patients to their family members or caregivers (although the Health Information Privacy Code gives healthcare professionals some discretion in emergency situations). Similarly, institutions such as banks, insurance and power companies are reluctant to engage with any other person unless there is signed authority. It’s often a time of great stress amplified by the lack of administrative power.


In these circumstances, a lawyer can make an application to the Family Court under the Protection of Personal and Property Rights Act to appoint someone to look after your care and property. They may not be who you would choose.

 

Why choose WWL as your Enduring Power of Attorney lawyers in Christchurch?

Weston Ward and Lascelles are a highly experienced multi discipline Christchurch law firm who help individuals and families prepare for the future, so it’s easier to do what’s best should the need arise. With the dedicated support of our Wills and Estate Planning team and Family Trust Lawyers, we offer legal services tailored to your unique needs. Click here or call 03 379 1740 to make your first appointment.


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