Enduring Powers of Attorney – appointing someone to look after your affairs if you are not able to…

In a recent example another husband and wife were in their late forties with several teenage children.  Both were working fulltime, their children were at the stage of becoming more independent and their lives in general were going well.

The husband had been feeling healthy within himself and it came as a shock to his wife and his family when they were called to say that he had suffered a brain aneurysm and was in Wellington Hospital.  The doctors advised that he had lost mental capacity.

They had assumed because they were married if anything happened to one of them, the other person would automatically have rights to manage their affairs as the next of kin.  Unfortunately they did not have Enduring Powers of Attorney in place.  If they did, managing his financial affairs would have been straightforward and would have let his wife focus on her family in this difficult time.

Instead she needed to apply to the Family Court to be appointed as her husband’s Property Manager.  This can be a lengthy and expensive process.  It took approximately two months to prepare this application as it needed to include detailed information and evidence from medical professionals.  Once the application was prepared, signed and lodged with the Family Court it took a further two months for the Court to process the application and seal the order.  This included a lawyer being appointed for the husband to represent his interests.  The legal and court costs were all additional and added to the burden.

There were also further obligations that his wife needed to comply with as a Property Manager including filing financial statements at the beginning of the managership and annually thereafter.  The Court also set a date for the property order to be reviewed within a three year period.

If the wife had been appointed under an Enduring Power of Attorney it would not have been necessary to apply to the Court and the additional obligations and expenses referred to above would not have been incurred.

Enduring Powers of Attorney

We consider your Will is the most important legal document you can sign during your life however Enduring Powers of Attorney are also very important documents.  They appoint someone to make decisions for you, in the event that you lose mental capacity and are unable to make these decisions yourself.  We all like to think that we wouldn’t need to rely on anyone other than ourselves to manage our affairs, however anyone can become mentally incapable at any age, whether it be by way of an accident, a stroke or an Alzheimer’s-type disease. They are a little like an insurance policy – hopefully you’ll never need to use them, but they are there to appoint someone you trust to manage your affairs, if required.

There are two types of Enduring Powers of Attorney, one for personal care and welfare and one for property.  We would recommend 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”.  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. This is someone to act in place of the attorney you have chosen if that first attorney was unable to act as your attorney 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/or 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.  These documents are relatively straightforward to prepare while you are still mentally capable.

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 Welfare Guardian.

This is considerably more 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.

If you require any assistance or if you have any queries regarding Enduring Powers of Attorney please feel free to contact us.