CAB: Taking care of your future

Napier CAB manager Jenny Pearce.

The Citizens Advice Bureau have clients who come looking for advice about caring for a loved one or for protecting themselves as they get older. Often they are sent to us by doctors or other people whose jobs involve caring for people. The advice given is about power of attorney. This can be quite complex and complicated, so firstly what is power of attorney?

When you give someone power of attorney, you give them the legal right to act on your behalf in relation to one or more aspects of your life, eg, your finances, property, or healthcare. There are two types of power of attorney – ordinary or general power of attorney, and enduring power of attorney.

You might set up an Ordinary Power of Attorney (OPA) if you want to give a person (or more than one person) the authority to act on your behalf in relation to some or more of your affairs.

For example, you might give someone this kind of authority if you were going overseas for a long time and wanted a trusted person to look after your finances until you return. An OPA can be for a fixed period of time.

You might set up an Enduring Power of Attorney (EPA) so that someone else will have the authority to make decisions on your behalf, if you lose the ability to make or communicate these decisions. There are two types of EPA:

• One that gives someone the power to make decisions about your health and welfare (which only takes effect if and when you lose your mental capacity)

• One that gives someone the power to make decisions about your property.

A client recently contacted CAB asking for advice as his father's doctor has diagnosed early signs of dementia and suggested he set up an EPA for both his health and welfare and his property. Different EPAs were explained to the client and advice given on how to set them up.

Follow this link on our website www.cab.org.nz for more information and in the search bar type:

KB0000001270 – what are the two types of power of attorney?

So the next question is how do you set up an enduring power of attorney? The answer quite simply is you will need a lawyer, a qualified legal executive or an authorised officer or employee of a trusted corporation.

You will need a lawyer to give you legal advice about the EPA and ensure it reflects your wishes. They must then sign a certificate confirming that they explained the effects and implications of the EPA and that they had no reason to suspect you were mentally incapable at the time of signing.

It is worth asking around to get an idea of how much they will charge you for your services relating to an EPA, because the fees are likely to vary widely depending on the provider.

A client was told the CAB were able to help write an EPA as they were cheaper than a lawyer. Volunteers at the CAB are unable to provide this service but they can download forms needed to set one up.

Follow this link on our website www.cab.org.nz and in the search bar type KB00040130 – Are their forms I can use to set up my Enduring Power of Attorney?

KB00001275 – Do I need a lawyer to set up an Enduring power of attorney?

How do you choose who will be your attorney?

This person has to someone you can trust. They will be making decisions about your finances, your property, and your care and welfare if you are no longer able to. Most people choose a family member, spouse or partner, or close friend.

If something happens to you and you do not have an EPA, your family – including your spouse or partner – would have to go to court to be able to act on your behalf. This process can be stressful and expensive for your loved ones.

Having an EPA protects you from financial abuse and means your wishes are more likely to be respected because you have chosen people you trust in advance who will make decisions in your best interest.

A good time to organise your EPA is when you're making a will, but everyone – whatever their age – should think about getting an EPA.

Another question is can an EPA end or be revoked?

A client was concerned about a family member misusing their rights as power of attorney as it was believed they were spending money for themselves.

The donor (the person who has given someone power of attorney) can cancel the EPA at any time while they still have mental capacity. This must be done in writing to the attorney.

If you wish to cancel, change or replace an EPA it's best to get legal advice. An EPA is revoked automatically when the donor dies.

The Family Court can revoke the appointment of an EPA attorney if it decides that the attorney is not acting in the donor's best interests. The EPA attorney may also decide they no longer wish to do this role by giving 'notice of disclaimer'.

Follow this link on our website www.cab.org.nz for more information and in the search bar type:

KB00001276 – When does a power of attorney begin and end?

KB00001277- What can I do if I do not agree with the decisions someone's EPA attorney is making

■ Anyone who wants to ask for advice can contact the Napier Citizens Advice Bureau in Bower House, Bower St, Monday to Friday 9am-4pm on 06 8359664 or 0800 367 222 or send an email on napier@cab.org.nz. At this time we are not taking face to face clients. Confidentiality is always assured.