What is a power of attorney?
What are the two types of enduring power of attorney?
I’m choosing a power of attorney. What are their responsibilities and what should I look for?
What can I do if I’ve got problems with a power of attorney?
What can I do if my attorneys aren’t getting on?
Do I have to go to a lawyer to set up a power of attorney?
What is a power of attorney?
When you give someone (or a company) power of attorney, you give them the legal right to act on your behalf i.e. look after your finances, manage your property and possibly other aspects of your life.
There are two types of power of attorney:
1. Ordinary power of attorney: is valid until it is cancelled, or you lose legal capacity (the ability to understand the nature and consequences of decisions and/or the ability to communicate these decisions). It can be for a fixed period of time. For example, someone planning to be overseas for a long time gives power of attorney to a trusted friend so that they can look after the traveller's financial affairs until they return.
2. Enduring power of attorney: created under the Protection of Personal and Property Rights Act 1988, and continues on even after you lose legal capacity (the ability to understand the nature and consequences of decisions and/or the ability to communicate these decisions). For example, someone with an illness that will eventually affect their mental capacity, arranges for a family member to have enduring power of attorney so that they can make decisions on the sick person's behalf.
Choosing someone to give power of attorney to is a very important decision. Think carefully about who you want to choose as your attorney, as the role can be misunderstood or abused. The ideal attorney is someone you really trust, someone who will keep your best interests at heart and who cannot benefit financially from the decisions they may have to make.
What are the two types of enduring power of attorney?
There are two types of enduring power of attorney:
- Enduring power of attorney for personal care and welfare: usually a close friend or family member (or members) who makes decisions about your care
- Enduring power of attorney for property: you can pick more than one individual or family member to make decisions about how your property and finances should be managed
It's possible to have one person who has enduring power of attorney for your personal care and welfare, and a different person who has enduring power of attorney for your property and finances.
I’m choosing to give someone power of attorney. What are their responsibilities and what should I look for?
Your attorney’s responsibilities are:
- To act in your best interests at all times and not abuse the trust you place in them
- To involve you in the decision-making as much as they can - they have to consult you about decisions, and you should try to make decisions as much as you can
Their specific responsibilities depend on the type of attorney you make them – ordinary or enduring. You can require your attorney to consult with people named in your agreement, and you can specify people you don’t want to look after you.
When choosing an attorney, you should pick someone:
- You trust and who will act in your best interests
- Who is a family member or you’re friends with (at least in the case of an attorney for personal care and welfare)
- At least 20 years old
- Who understands their role as an attorney, and agrees to it
You may wish to choose different people to be your attorneys for personal care and property. The two roles require different skills.
What can I do if I’ve got problems with a power of attorney?
You can cancel or revoke your power of attorney at any time while you are mentally capable. Because different procedures are needed to do this, you should talk to your lawyer to get some advice about how to do this.
If your attorney isn’t carrying out their responsibilities properly, you can ask the Family Court to step in. The Court has the power to monitor and review any decision made by a power of attorney. Even other people can make a complaint to the Family Court about an attorney’s decision, including:
- One of your relatives
- Another of your attorneys
- A social worker from the Department of Child, Youth and Family Services
- A medical practitioner
- A trustee corporation
- A welfare guardian that has been appointed to you
- Any other person, with the leave of the court
What can I do if my attorneys are not getting on?
If you have two attorneys – one for personal care and one for property – then sometimes they can have different opinions about what is best for you and your life. Sometimes the conflict can grow, so either attorney can apply to the Family Court to ask for direction about what to do.
Do I have to go to a lawyer to set up a power of attorney?
Not necessarily. You should consult a legal adviser (like a lawyer or a trustee company) before you set up your attorney.
If you are giving someone an ordinary power of attorney (see What is a power of attorney?), all you need to do is fill out the appropriate forms and have them signed by the attorney, yourself and some witnesses.
If you are appointing an enduring power of attorney, the law requires that you and the attorney get independent legal advice beforehand. Also, the completed forms will need to be witnessed by:
- a lawyer, or
- a qualified legal executive, or
- an authorised officer or employee of a trustee corporation.
You can get these forms from:
It’s a good idea to talk to your legal adviser before you set up your attorney because they can tell you about:
- The information you need to fill out the form
- Whether you should restrict your attorney’s powers to particular issues or types of decisions
- Optional provisions such as;
- requiring your attorney to consult with people you choose
- requiring your attorney to provide information to people you choose
- appointing a replacement attorney if your first pick can’t act for you anymore
You can find out more from the Community Law Centre website or the 
New Zealand Law Society booklet.