Enduring Power of Attorney (EPA) for property

It’s a legal document that gives someone you trust the power to look after your money and property if you’re unable to. This person is called your attorney. They can be a:

• family member
• trusted friend
• professional, such as a lawyer or accountant, or
• trustee company, such as the Public Trust.

You can also establish an EPA for personal care and welfare, which gives someone you trust the ability to make decisions about your health and medical care if you become too sick to do so.

Enduring Power of Attorney (EPA) for personal care and welfare

If you do not have an EPA for property

If you are not able to manage your money and property anymore and you do not have an EPA, your family needs to apply to the Family Court to have someone appointed as a property manager. This can be expensive and time-consuming, and the Court may not appoint the person that you would have chosen. The appointment of a property manager also needs to be renewed every few years.

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 can keep the costs down by making sure you’ve already:

• talked to the person you want as an attorney and got their agreement
• agreed on how your money and property will be managed
• decided whether your attorney must consult with anyone over decisions, and who those people are
• put together a list of all your assets (house, car, jewellery, investments, furniture, land), including money and any debts
• decided whether your attorney would look after all your property or only specific things, for example just your bank accounts and investments
• worked out any special conditions you want your attorney to follow — such as birthday presents for grandchildren or on-going donations to charities
• decided who would replace your attorney if they died, became bankrupt or mentally incapable
• decided when you want your EPA to start.

Choosing when your EPA for property starts

You must choose whether your EPA begins when:

• you’re still mentally capable, or
• you’ve become mentally incapable, that is a doctor has decided that you’re no longer able to make decisions for yourself.

If your EPA begins while you’re still mentally capable, it means that your attorney can begin to act when you want or need them to.

If your EPA only starts once you’ve become mentally incapable, your attorney needs to wait until a doctor or the Family Court has declared that you’re mentally incapable.

You need to choose someone you trust to be your attorney as they’ll have the power to:

• sell your house and other property
• access your bank accounts
• manage your investments
• pay your bills
• manage any businesses you own.

Your attorney should have the time and skills to deal with your money and property. They need to keep records of any decisions and actions they take and must act in your best interests and consult you as much as they can.

Your attorney must be:

• aged 20 or older
• not bankrupt
• mentally capable — able to make decisions themselves.

You can also choose to appoint a trustee company, such as the Public Trust, to be your attorney. A trustee company acts for you in a neutral and independent way, but charges you to do this.

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.

Appointing more than 1 attorney

With an EPA for property you can have more than 1 person as an attorney. This can provide greater protection for you and give your attorneys someone to discuss decisions with. If you do appoint more than 1 person, you need to decide if you want them to act jointly or separately.

Acting jointly

If they act jointly, they must make decisions together and anything requiring a signature will require all of their signatures. You need to decide what happens if one of them stops being your attorney or has their appointment revoked — otherwise the EPA will end. There are various solutions you could choose, such as appointing a successor attorney to take over, or for the remaining attorney to continue to act on their own.

Acting separately

If you allow your attorneys to act separately — also known as ‘severally’ — you could choose to have them look after different parts of your property. For example, 1 person could be responsible for the house and another responsible for your bank accounts.

You must fill out an EPA for property form and your signature must be witnessed by:

• 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’s in place, and
• that you’re 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 is not you or your witness.

You can download the form from the Ministry of Social Development website, or your lawyer can provide one.

Enduring Power of Attorney — property form (DOC 180KB)

Enduring Power of Attorney — standard explanation — property (PDF 260KB)

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 procedures depending on whether you’re wanting to cancel the EPA or change the terms. Your lawyer can explain these.

If you die

An EPA for property ends once you die. Control over your money and property passes to:

• the executor of your will, or
• the person appointed as the administrator of your estate if you died without a will.

If your attorney dies, becomes bankrupt or mentally incapable

If your attorney dies, becomes bankrupt or unable to cope themselves, they can no longer act as your attorney. The EPA for property would end, unless you had named someone to replace them — known as a successor attorney. If you had, then the successor attorney would take over and the EPA for property continues.

If you’re an attorney

You can decide that you do not want to act as an attorney anymore.

You make your decision known by writing to:

• the person concerned, if the EPA has not started yet, or
• the Family Court, if you’re already acting for someone.

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.

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.

The Family Court and EPAs