Enduring Powers of Attorney (EPOAs) allow you to appoint someone to manage and make decisions about your affairs if you are unable to do so yourself. They are very important should anything happen to one spouse (such as a sudden illness or injury) and they cannot make decisions for themselves. Many people assume that spouses would automatically have rights to manage their affairs as the next of kin should anything happen.  Unfortunately, that is not the case and unless you have Enduring Powers of Attorney in place managing the financial affairs becomes complex, time consuming and expensive.

A spouse needs to apply to the Family Court to be appointed as the Property Manager.  This can be a lengthy and expensive process taking many months. 

There are also further obligations that the Property Manager has to comply with including filing financial statements at the beginning of the managership and annually thereafter. 

If each spouse is appointed under an Enduring Power of Attorney it would not be necessary to apply to the Court and the additional obligations and expenses referred to above would not arise.

There are two types of EPOAs; one in relation to property and the other in relation to personal care and welfare.  It is generally recommended that you put both in place, so that your affairs are well taken care of.

EPOAs are an important thing to consider making, or updating, at the time you purchase and/or sell a property.

The law relating to Enduring Powers of Attorney (EPOAs) was changed earlier in the year and new plain language EPOA forms came into effect from 16 March 2017, replacing all previous versions. The new forms are intended to be more user-friendly, including the use of plain English, explanatory notes and additional sections to insert further instructions. The new forms are available online through the Ministry of Social Development and Ministry of Justice websites from 16 March 2017 onwards.  People wishing to make EPOAs can download and complete the forms themselves.  You can find out more on the MSD website.

Importantly, any EPOAs which have been prepared but not signed by all parties (the Donor and all the Attorneys and Successor Attorneys) prior to 16 March 2017 will now be invalid.  New EPOAs will need to be made on the new forms.  If this applies to you, you should see your lawyer or legal advisor for more information.

Any EPOAs made and signed by all parties prior to 16 March 2017 remain valid and in place; it is only those that are not yet signed or made after that date that are affected.

In order for the EPOAs to become legally valid, you will need to obtain legal advice about the nature and effect of the documents before signing, and your lawyer or legal advisor must complete a witnessing and certification section.  If this part is not completed, the EPOAs will not be legally valid.

As with any legal documents, it is best to see your lawyer or legal advisor, who can assist you with making EPOAs that best suit your situation.

Alan Knowsley
Partner
Wellington