Enduring Power of Attorney (EPA) for personal care and welfare
An EPA for personal care and welfare
An Enduring Power of Attorney (EPA) for personal care and welfare gives someone you trust the power to make decisions about your health and welfare if you're unable to.
It’s a legal document that gives someone you trust the power to look after your health and welfare if you’re unable to because of illness, an accident or an age-related disease. This person is called your attorney. They’re often a family member or a trusted friend.
You can also establish an EPA for property, which gives someone you trust the ability to make decisions about your money and property if you become too sick to do so.
If you don’t have an EPA for personal care and welfare
If you don’t have one set up and you aren’t able to manage anymore your family would need to apply to the Family Court to have someone appointed as a welfare guardian.
This can be expensive and time-consuming and the Court may not appoint the person you would have chosen. The appointment of a welfare guardian also needs to be renewed every few years.
Before you set up an EPA for personal care and welfare
It costs money to set up an EPA because you need to pay for a lawyer or qualified legal executive to witness it. Working out what you want before meeting with a lawyer can mean the meeting is shorter and therefore cheaper.
You may be able to get a discount if you’re a SuperGold Card holder.
You can keep the costs down by making sure you’ve already:
- talked to the person you want as an attorney and got their agreement
- decided whether your attorney will be able to make decisions about everything or only certain things
- decided whether your attorney must consult with anyone over decisions, and who those people are
- decided who would replace your attorney if they died, became bankrupt or mentally incapable.
Choosing your attorney
You need to choose someone you trust to be your attorney, as they’ll have the power to make decisions about:
- your medical treatment
- where you live
- whether you need to go into residential care.
They need to be able to make the best decisions for you and be willing to discuss these with you as much as possible. They should also be able to work alongside whoever you choose to be your attorney for your EPA for property, as they will sometimes need to make decisions together.
Your attorney must be:
- aged 20 or older
- not bankrupt
- mentally capable — able to make decisions themselves.
You can only have 1 attorney for an EPA for personal care and welfare and they must be a person — they can’t be a trustee company.
You can also appoint someone — known as your successor attorney — to take over if your attorney wants to stop acting for you, dies or has their appointment revoked.
What your attorney can decide
You decide whether your attorney can make decisions about everything to do with your care and welfare or only some things.
However, no matter what you decide they can’t:
- make decisions about you getting married, separated or divorced
- make decisions about the adoption of your children
- consent to surgery or treatment of your brain, including electro-convulsive treatment (ECT) for the purposes of changing your behaviour
- refuse consent to standard medical treatment that could save your life or prevent serious damage to you
- allow you to take part in any medical experiment, unless it might save your life or prevent serious damage to your health.
If you need CPR your attorney can’t refuse permission. If you decide that, in some cases, you don’t want to be resuscitated, you need to make an advance directive — sometimes known as a ‘living will’ — before you become mentally incapable.
Set up an EPA for personal care and welfare
You must fill out an EPA for personal care and welfare form and your signature must be witnessed by either:
- a lawyer
- a qualified legal executive, or
- an authorised representative of a trustee company.
The witness must also attach a certificate that states they’ve explained:
- what an EPA is
- what will happen once it is in place, and
- that you are not mentally incapable at this time.
The person you’ve chosen to be your attorney also needs to sign the form. Their signature must be witnessed by someone who isn’t you or your witness.
You can download the form from the Ministry of Social Development website, or your lawyer can provide one.
When your EPA for personal care and welfare starts
Your EPA for personal care and welfare only starts once you’ve been declared mentally incapable. Your attorney won’t be able to make any significant decisions until a doctor or the Family Court decides you’re unable to:
- make or understand decisions about your care and welfare
- see what the results of those decisions might be, or
- explain to others your decisions about your care and welfare.
A significant decision is one that has a major impact on your health, enjoyment of life or general wellbeing, for example a change in where you live.
Who decides if you’re mentally incapable
When you make your EPA, you can choose whether a doctor, such as your GP or a specialist like a geriatrician, decides whether you’re still mentally capable or not.
Your attorney can make decisions about minor matters to do with your care and welfare only if they believe that you’ve become mentally incapable. These could include matters like:
- booking a regular checkup with your doctor
- renewing your prescription for regular medicine
- arranging for cleaning or minor support services
- arranging the installation of a medical alarm.
Changing or cancelling an EPA for personal care and welfare
You can cancel your EPA, change your attorney or change the conditions at any time, as long as you’re still able to make decisions. There are different ways of doing this depending on whether you want to cancel the EPA or change the terms. Your lawyer can explain these.
If you die
An EPA for your personal care and welfare ends when you die.
If your attorney dies, becomes bankrupt or mentally incapable
An EPA ends if your attorney dies, becomes bankrupt or unable to manage themselves. However, if you had named someone to replace them — known as a successor attorney — when you set up your EPA, then the successor attorney would take over and the EPA for your personal care and welfare continues.
If you’re an attorney
You can decide that you don’t want to act as an attorney anymore.
You make your decision known by writing to:
- the person concerned, if the EPA hasn’t started yet, or
- the Family Court, if you’re already acting for someone.
Getting help from the Family Court
The Family Court can:
- tell your attorney what to do
- review decisions your attorney has made
- stop your attorney from acting if it decides they’re not:
- acting in your best interests
- fulfilling their responsibilities.
- cancel the EPA if it thinks that:
- you were pressured into appointing your attorney
- your attorney is unsuitable because of their relationship to you, their mental state or criminal activity.
Your attorney can apply to the Family Court for directions on what is the right thing to do for you. If there is a conflict between your attorney for personal care and welfare, and your attorney for property, the Family Court can help everyone involved reach a decision.
Your family can ask the Family Court to help if they’re worried about the decisions that your attorney is making. Other people, for example your doctor, social worker or the manager of your rest home, can also apply to the Court if they’re concerned.
The Ministry of Justice has more information about the Family Court’s role, who can apply to it and the forms that need to be completed.