Duties of an Attorney
An Enduring Power of Attorney document is created pursuant to part 9 (sections 93A to 108AAB) of the Personal & Property Rights Act 1988. An Attorney’s duties can be summarised as follows:
1 Property
(i) Where a person granting a Power of Attorney is no longer mentally capable, then the paramount consideration of the Attorney is to use the Donor’s property in the promotion and protection of the Donor’s best interests, whilst consulting as far as practicable with the Donor and taking into account any directives previously given by the Donor;
(ii) An Attorney must keep records of each financial transaction entered into and provide the information on request. In other words, the Attorney must be able to fully account for all transactions. It is an offence not to comply with this requirement and an Attorney(s) failing to meet this requirement are liable to conviction and a fine of up to $1,000.00.
Where two people are appointed, both parties are responsible to ensure that full and accurate records are kept.
2 Personal Care & Welfare
(i) An Attorney cannot act as an Attorney for Personal Care & Welfare on any significant matter relating to the Donor’s care & welfare unless a relevant health practitioner has certified or a Court has determined that the Donor is mentally incapable, and must not act on any other matters (i.e. non-significant) unless they believe on reasonable grounds that the Donor is mentally incapable.
A significant matter means that something that has or is likely to have a significant effect on the health, well-being, or enjoyment of life. Examples included in the Act are permanent change in residence, entering residential care or undergoing a major medical procedure.
3 General
Review of Decisions
(i) If an Attorney is unsure in relation to the exercise of their powers, they can apply to the Court for direction.
(ii) The Court can be asked at any time to review any decision by an Attorney by the following persons:
(a) the Donor;
(b) relative or another Attorney of Donor;
(c) Social Worker;
(d) medical practitioner;
(e) a Trustee corporation;
(f) principal manager of a care facility;
(g) Welfare Guardian;
(h) certain Government organisations;
(i) any other person with the leave of the Court.
A decision can be reviewed after a Power of Attorney is revoked or upon the Donor’s death, and the Court can make any Order(s) it thinks fit.
(iii) Revocation
A Power of Attorney remains in effect until the Donor dies or it is revoked by the Donor or the Court.
(iv) No Benefit
An Attorney must not at any time while the Donor is mentally incapable act to their own benefit, nor can they recover any expenses from the Donor’s property unless it is specified or authorised by the Court. They may however recover reasonable out-of pocket expenses and may also charge fees if they are acting in a professional capacity (i.e. an accountant or lawyer).
For further information please see the Ministry of Social Development website or the Ministry of Justice website