A parent appointed both of their children as their attorneys under an Enduring Power of Attorney (“EPOA”).   The attorneys had joint authority to act. 

Some years later, the parent and one child were in a serious car crash.  The parent lost mental capacity, and the child was left severely disabled. 

The other child needed to act urgently under the EPOA, but found that they could not do so because they were only appointed to act jointly with their sibling. 

Their sibling’s severe disability meant that the EPOA was no longer in effect.  They had to make an application to the Court to be appointed to act alone, which was complex and costly, in circumstances that were already emotional and stressful.

Attorney’s Authority

When appointing more than one attorney to act at the same time under an EPOA, the donor can specify whether the attorneys have joint, several, or joint and several, authority to act.

Joint authority

This type of appointment means that the attorneys can only act together, each with the knowledge and approval of the other/s.  Unfortunately (as in the above scenario), this type of appointment means that if one attorney is unable to act for any reason the other attorney cannot act alone.  They may need to apply to the Court to resolve the situation, unless there is a successor attorney appointed to replace them.

Joint authority can also be a problem if the attorneys are unable to work together, for example because of a breakdown in their relationship.

Several authority

This type of appointment allows the attorneys to act separately, without the knowledge and approval of the other/s. 

Several authority can lead to discordant relationships between the attorneys, for example if one is excluded, or there is doubling-up through poor communication. 

Joint and several authority

This type of appointment allows the attorneys to act together and separately, as required.

This will ensure that if something happens to one of the attorneys, which causes the joint authority to cease, the remaining attorney can still act under the several authority provision.

At all times the attorneys must act in the donor’s best interests (and on their instructions while they have mental capacity if the EPOA takes effect at that time).

What can you do?

When making an EPOA, donors should give careful thought to who they appoint as their attorneys.   In most cases, joint and several authority will be the most appropriate type of appointment.

If a donor has a strong reason to only allow joint authority (for example because they are concerned that their attorneys may not act in their best interests if they act alone) then it might be best to think about appointing someone else.

If you are looking to make or update EPOAs, see your legal advisor for advice about what best suits your situation. 

Louisa Gommans

Solicitor
Wellington