Form 1
Enduring power of attorney in relation to property

Section 94A(2), Protection of Personal and Property Rights Act 1988

• 1 I, [full name, address, occupation of donor], appoint [full name, address, occupation of each attorney] to be my attorney/attorneys* in relation to my property affairs for the purposes of Part 9 of the Protection of Personal and Property Rights Act 1988.

  *Select one.

• 2 For this paragraph select the statement that applies.

  Statement A

  I authorise my attorney/attorneys* to act on my behalf in relation to all of my property affairs.

  *Select one.

  Statement B

  I authorise my attorney/attorneys* to act on my behalf only in relation to the following of my property affairs: [specify].

  *Select one.

• 3 For this paragraph select the statement that applies.

  Statement A

  I authorise my attorney/attorneys* to act on my behalf generally in respect of the property affairs referred to in paragraph 2.

  *Select one.

  Statement B

  I authorise my attorney/attorneys* to act on my behalf in respect of the property affairs referred to in paragraph 2 in the following ways only: [specify].

  *Select one.

• 4 For this paragraph select the statement that applies.

  Statement A

  I authorise my attorney/attorneys* to act while I am mentally capable and to continue to act if I become mentally incapable.

  *Select one.

  Statement B

  I authorise my attorney/attorneys* to act only if I become mentally incapable.

  *Select one.

• 5 The authority of my attorney/attorneys* is subject to the following conditions and restrictions: [specify].

  *Select one.

• 6 If more than one attorney is appointed, for this paragraph select the statement that applies.

  Statement A

  My attorneys have joint authority to act.

  Statement B

  My attorneys have several authority to act.

• 7 For this paragraph select the statement that applies.

  Statement A (if appointing one successor attorney to succeed sole attorney or an attorney having several authority)

  If the appointment of my attorney/any of my attorneys having several authority* ceases, I appoint [full name, address, occupation of successor attorney] to act as my successor attorney in place of the attorney whose appointment has ceased and is succeeded.

  *Select one.

  Statement B (if appointing one successor attorney to succeed attorneys having joint authority)

  If the appointment of my joint attorneys ceases, I appoint [full name, address, occupation of successor attorney] to act as my successor attorney in place of my joint attorneys whose appointments have ceased and are succeeded.

  Statement C (if appointing more than one successor attorney to succeed sole attorney or an attorney having several authority)

  If the appointment of my attorney/any of my attorneys having several authority* ceases, I appoint [full name, address, occupation of each successor attorney] to act in succession as my successor attorneys, each of whom is to act in place of the last attorney whose appointment has ceased and is succeeded.

  *Select one.

  Statement D (if appointing more than one successor attorney to succeed attorneys having joint authority)

  If the appointment of my joint attorneys ceases, I appoint [full name, address, occupation of each successor attorney] to act in succession as my successor attorneys, each of whom is to act in place of my joint attorneys and the last attorney whose appointment has ceased and is succeeded.

• 8 When acting on my behalf in relation to my property affairs, my attorney/attorneys* must consult, as far as is practicable, with the following person/persons* in addition to myself in relation to the matters specified: [full name, address, and occupation of every person who must be consulted and, in respect of each person, specify that the person is to be consulted on all matters, or specify the kinds of matters or particular matters in respect of which the person is to be consulted].

  *Select one.

• 9 For this paragraph select the statement that applies.

  Statement A

  I consent to my attorney/attorneys* executing a will for and on my behalf if I lack the capacity to make a will.

  *Select one.

  Statement B

  I do not consent to my attorney/any of my attorneys* executing a will for and on my behalf if I lack the capacity to make a will.

  *Select one.

• 10 For this paragraph select the statement(s) that apply.

  Statement A

  I authorise my attorney/attorneys* to do the following when acting on my behalf when I am mentally incapable: [select one or more of the following]

  • • act to the benefit of himself/herself/themselves* to the extent that [specify]:

  • • act to the benefit of any person other than myself to the extent that [specify]:

  • • recover any expenses from my property to the extent that [specify].

  *Select one.

  Statement B

  I do not authorise my attorney/any of my attorneys* to do the following when acting on my behalf when I am mentally incapable: [select one or more of the following]

  • • take any action in respect of real or personal property that the attorney and I own jointly and not as tenants in common [include this only if the donor is married to, or in a civil union or de facto relationship with, the attorney and the donor and attorney are living together and sharing incomes]:

  • • make payments in respect of out-of-pocket expenses incurred by my attorney:

  • • make payments in respect of professional fees incurred by my attorney in any professional capacity:

  • • make a loan, advance, or other investment of my property that a trustee could make of trust funds under section 13A of the Trustee Act 1956.

  *Select one.

• 11 My attorney must provide the following person/persons* with the specified kinds of information relating to the exercise of the attorney's powers under the enduring power of attorney if that person/those persons* should request it: [full name, address, and occupation of each person who is to be provided with information relating to the exercise of the attorney's powers under the enduring power of attorney if the person requests it and specify the kind of information that is to be provided to each such person].

  *Select one.

• 12 Any assessment of my mental capacity for the purposes of Part 9 of the Protection of Personal and Property Rights Act 1988 is to be undertaken by [specify type of health practitioner and that health practitioner's scope of practice, for example, a medical practioner registered with a general scope of practice].

Signed by [name of donor]

in the presence of:

[full name of witness]

[name of city, town, or locality where witness ordinarily resides]

[occupation or description of witness]

or

Signed by [full name] in the presence of [full name of donor] and by the direction of [full name of donor]

in the presence of:

[full name of witness]

[name of city, town, or locality where witness ordinarily resides]

[occupation or description of witness]

*Signed by [name of attorney]

in the presence of:

[full name of witness]

[name of city, town, or locality where witness ordinarily resides]

[occupation or description of witness]

The effect of the enduring power of attorney is to authorise the person(s) you (the donor) have named as your attorney(s) to act on your behalf in relation to your property affairs.

You can authorise your attorney to act on your behalf while you are mentally capable, and to continue to act if you become mentally incapable. Alternatively, you can authorise your attorney to act on your behalf only if you become mentally incapable.

Mentally incapable is defined in section 94(1) of the Protection of Personal and Property Rights Act 1988 (the Act). That section provides that a donor of an enduring power of attorney is mentally incapable in relation to property if the donor is not wholly competent to manage his or her own affairs in relation to his or her property.

An assessment of mental capacity must take into account the presumption of competence in section 93B of the Act. Every person is presumed, until the contrary is shown, to be competent to manage his or her own affairs in relation to his or her property. A person must not be presumed to lack that competence just because—

• the person manages, or intends to manage, his or her own affairs in relation to his or her property in a way that a person exercising ordinary prudence would not do in the same circumstances; or

• the person is subject to compulsory treatment or has special patient status under the Mental Health (Compulsory Assessment and Treatment) Act 1992.

In these notes, the term attorney refers, if you have appointed more than one attorney, to all attorneys.

The following notes refer to the numbered paragraphs in the form.

• You can appoint one or more attorneys.

  You can appoint an individual or a trustee corporation as an attorney.

  An individual appointed as an attorney must be at least 20 years of age, not bankrupt, and not subject to a personal order or a property order under the Act.

  A trustee corporation is the Maori Trustee, the Public Trust, and any trustee company within the meaning of the Trustee Companies Act 1967.

• You can authorise your attorney to act on your behalf in relation to all of your property affairs, or only some of your property affairs. If you want your attorney to act only in relation to some of your property affairs, you must specify what those affairs are.

• You can authorise your attorney to act generally on your behalf in relation to your property affairs, or to act on your behalf in certain ways only.

  Under section 97A(2) of the Act, your attorney's paramount consideration when you are mentally incapable is to use your property in the promotion and protection of your best interests, while seeking at all times to encourage you to develop our own competence to manage your own affairs in relation to your property.

• You can authorise your attorney to act immediately, while you are mentally capable, and to continue to act if you become mentally incapable. Alternatively, you can authorise your attorney to act under the enduring power of attorney only if you become mentally incapable. Under this option your attorney must not act in relation to your property unless a relevant health practitioner has certified, or the Family Court has determined, that you are mentally incapable.

  A relevant health practitioner is a person—

  • • who is, or is deemed to be, registered with a registration authority appointed by or under the Health Practitioners Competence Assurance Act 2003 as a practitioner of a particular health profession; and

  • • whose scope of practice enables him or her to assess a person's mental capacity; and

  • • who is competent to undertake an assessment of that kind.

  In the case of a certificate of mental incapacity issued outside New Zealand, a relevant health practitioner is a person registered as a medical practitioner by the competent authority of the country concerned and whose scope of practice includes the assessment of a person's mental capacity.

  A donor may specify in an enduring power of attorney that an assessment of his or her mental capacity be undertaken by a health practitioner with a specified scope of practice (for example, a medical practitioner registered with a general scope of practice, or a nurse whose registered scope of practice is nurse practitioner). Provided health practitioners who have that scope of practice are able to assess a person's mental capacity, then only a health practitioner with the scope of practice specified by the donor and who is competent to do so may assess the donor's mental capacity and complete the certificate.

• If you want to place conditions or restrictions on your attorney's authority, you must specify what those conditions or restrictions are.

• If you have appointed more than one attorney, you can specify that your attorneys must act jointly (they must make decisions and act together), or that they may act severally (each can act independently). Note that if your attorneys have joint authority and the appointment of one of them ceases, none will have authority to act.

• You can appoint another individual or individuals or a trustee corporation to be your attorney in the event that your original attorney’s appointment ceases. Section 106(1)(c) to (f) of the Act sets out the circumstances when an attorney's appointment ceases, as follows:

  • • the attorney gives notice of disclaimer in accordance with section 104 of the Act. Disclaimer means that the attorney refuses to accept or continue the responsibility as your attorney; or

  • • the attorney dies, or is adjudged bankrupt, or becomes a patient within the meaning of the Mental Health (Compulsory Assessment and Treatment) Act 1992 detained in a hospital under that Act, or becomes subject to a personal order or a property order under the Act, or otherwise becomes incapable of acting; or

  • • if you have appointed attorneys with joint authority, one of them dies, or is adjudged bankrupt, or becomes a patient within the meaning of the Mental Health (Compulsory Assessment and Treatment) Act 1992 detained in a hospital under that Act, or becomes subject to a personal order or a property order under the Act, or otherwise becomes incapable of acting; or

  • • a Family Court revokes the appointment of the attorney pursuant to section 105 of the Act.

• When acting on your behalf under the enduring power of attorney, your attorney must, as far as is practicable, consult with you.

  You may specify one or more persons with whom your attorney must, as far as is practicable, also consult when making decisions under the enduring power of attorney.

  In respect of each of these persons, you must state the matters related to your property affairs on which your attorney is required to consult with them.

  You may wish your attorney to consult with these persons on all matters, or only in respect of certain kinds of matters or particular matters.

  If you appoint a separate attorney in relation to your personal care and welfare, your attorneys must consult each other regularly to ensure that your interests are not prejudiced through any breakdown in communication between them. An attorney's duty to consult is set out in section 99A of the Act.

• The Family Court can authorise your property attorney to execute a will for and on your behalf if you do not have the capacity to make a will, unless you say otherwise in your enduring power of attorney. If an application is made to the Court for this authority, the Court decides provisionally on the form of the will and hears from all interested parties before it makes a decision to authorise your attorney to execute it.

• You should consider very carefully whether you want to give your attorney(s) the right, when you are mentally incapable, to act to their own benefit or to the benefit of other persons. Acting to the benefit means that your attorney may use, or authorise someone else to use, your property or make loans or gifts from it. If you do not expressly state otherwise in your enduring power of attorney, your attorney will be able to do any of the following things set out in section 107(1)(c) of the Act:

  • • if you and the attorney are married or are in a civil union or a de facto relationship with each other and you live together and share your incomes, act in respect of real property (land and buildings) or personal property you own jointly and not as tenants in common:

  • • make payments for out-of-pocket expenses (but not for lost wages or remuneration) reasonably incurred by an attorney if the attorney produces receipts or other evidence:

  • • pay professional fees and expenses reasonably incurred by an attorney who has accepted the appointment in a professional capacity (for example, a lawyer) or has done work in a professional capacity to give effect to decisions taken under the enduring power of attorney:

  • • make a loan or advance or other investment of your property of the kind that a trustee could make of trust funds under section 13A of the Trustee Act 1956.

• You can specify one or more persons who are to be provided with information relating to the exercise of the attorney's powers under the enduring power of attorney on request. In respect of each person, you must specify the kind of information to be provided to that person.

  Under section 99B of the Act, your attorney is required to promptly comply with a request made by any of those persons for information relating to the exercise of the attorney's powers if the information requested is of the kind that you have specified that that person can request.

• You can specify that any assessment of your mental capacity be undertaken by a health practitioner with a specified scope of practice. The scope of practice must include the assessment of mental capacity. Note that if you were to become mentally incapable while overseas, special provisions apply to assessment of capacity.

Before signing this document, you must receive an explanation of the effects and implications of it and other matters from the person who witnesses your signature, and that person must also give a certificate as to certain matters. The witness must be a lawyer, an authorised officer of a trustee corporation, or a qualified legal executive who is independent of the attorney. However, if the attorney is appointed in his or her capacity as a lawyer, another lawyer or qualified legal executive in the lawyer’s firm can witness your signature. Likewise, if the attorney is a trustee corporation, an authorised officer of the corporation can witness your signature.

A qualified legal executive must be a member of, and hold a current annual registration certificate issued by, the New Zealand Institute of Legal Executives Inc, have at least 12 months experience as a legal executive, and be employed by, and under the direct supervision of, a lawyer.

Your attorney’s signature to this document must be witnessed by a person who is not the same person who witnessed your signature to the enduring power of attorney. You cannot act as witness to the attorney’s signature.

If you appoint a successor attorney, he or she must also sign the document, and the signature must also be witnessed by a person who is not the witness to your signature. You cannot act as witness to the successor attorney’s signature.

Once this document is signed, you can revoke it at any time by giving notice in writing to the attorney and to any successor attorney.

If you become mentally incapable and subsequently recover capacity, you are entitled to suspend your attorney’s power to act under the enduring power of attorney by giving the attorney written notice. The suspension does not revoke the enduring power of attorney, and your attorney will be able to act under it again if you are again certified as (or the Family Court decides you are) mentally incapable.

Forms that may be used to give notice of revocation or notice of suspension are set out in the Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008.

You should send a copy of this document to people or organisations that the attorney may have dealings with under the enduring power of attorney (for example, your bank or lawyer).

Form 2
Enduring power of attorney in relation to personal care and welfare

Section 94A(2), Protection of Personal and Property Rights Act 1988

• 1 I, [full name, address, occupation of donor], appoint [full name, address, occupation of attorney] to be my attorney in relation to my personal care and welfare for the purposes of Part 9 of the Protection of Personal and Property Rights Act 1988.

• 2 For this paragraph select the statement that applies.

  Statement A

  I authorise my attorney authority to act on my behalf in relation to all of my personal care and welfare matters.

  Statement B

  I authorise my attorney authority to act on my behalf in relation to the following of my personal care and welfare matters: [specify].

• 3 The authority of my attorney referred to in paragraph 2 is subject to the following conditions and restrictions in addition to the limitations referred to in section 98(4) of the Protection of Personal and Property Rights Act 1988: [specify].

• 4 For this paragraph select the statement that applies.

  Statement A (if appointing one successor attorney)

  If the appointment of my attorney ceases, I appoint [full name, address, occupation of successor attorney] to act as my successor attorney in place of the attorney whose appointment has ceased and is succeeded.

  Statement B (if appointing more than one successor attorney)

  If the appointment of my attorney ceases, I appoint [full name, address, occupation of each successor attorney] to act in succession as my successor attorneys, each of whom is to act in place of the last attorney whose appointment has ceased and is succeeded.

• 5 When acting on my behalf in relation to my personal care and welfare matters, my attorney must consult, as far as is practicable, with the following person/persons* in addition to myself in relation to the matters specified: [full name, address, occupation of every person who must be consulted and, in respect of each person, specify that the person is to be consulted on all matters, or specify the kinds of matters or particular matters in respect of which the person is to be consulted].

  *Select one.

• 6 My attorney must provide the following person/persons* with the specified kinds of information relating to the exercise of the attorney's powers under the enduring power of attorney if that person/those persons* should request it: [full name, address, and occupation of each person who is to be provided with information relating to the exercise of the attorney's powers under the enduring power of attorney if the person requests it and specify the kind of information that is to be provided to each such person].

  *Select one.

• 7 Any assessment of my mental capacity for the purposes of Part 9 of the Protection of Personal and Property Rights Act 1988 is to be undertaken by [specify type of health practitioner and that health practitioner's scope of practice, for example, a medical practioner registered with a general scope of practice].

Signed by [name of donor]

in the presence of:

[full name of witness]

[name of city, town, or locality where witness ordinarily resides]

[occupation or description of witness]

or

Signed by [full name] in the presence of [full name of donor] and by the direction of [full name of donor]

in the presence of:

[full name of witness]

[name of city, town, or locality where witness ordinarily resides]

[occupation or description of witness]

*Signed by [name of attorney]

in the presence of:

[full name of witness]

[name of city, town, or locality where witness ordinarily resides]

[occupation or description of witness]

The effect of the enduring power of attorney is to authorise the person you (the donor) have named as your attorney to act on your behalf in relation to your personal care and welfare if you become mentally incapable.

Mentally incapable is defined in section 94(2) of the Protection of Personal and Property Rights Act 1988 (the Act). This section provides that a donor of an enduring power of attorney is mentally incapable in relation to personal care and welfare if the donor—

• (a) lacks the capacity—

  • (i) to make a decision about a matter relating to his or her personal care and welfare; or

  • (ii) to understand the nature of decisions about matters relating to his or her personal care and welfare; or

  • (iii) to foresee the consequences of decisions about matters relating to his or her personal care and welfare or of any failure to make such decisions; or

• (b) lacks the capacity to communicate decisions about matters relating to his or her personal care and welfare.

An assessment of your mental capacity must take into account the presumption of competence in section 93B of the Act. Every person is presumed, until the contrary is shown, to have the capacity—

• to understand the nature of decisions about matters relating to his or her personal care and welfare; and

• to foresee the consequences of decisions about matters relating to his or her personal care and welfare or of any failure to make such decisions; and

• to communicate decisions about such matters.

A person must not be presumed to lack mental capacity just because the person makes or intends to make a decision about his or her personal care and welfare that a person exercising ordinary prudence would not make in the same circumstances.

Also, a person must not be presumed to lack mental capacity just because he or she is subject to compulsory treatment or has special patient status under the Mental Health (Compulsory Assessment and Treatment) Act 1992.

Your attorney will be able to act under the enduring power of attorney only if you become mentally incapable.

Under section 98 of the Act,—

• an attorney must not act in respect of a significant matter relating to the donor's personal care and welfare unless,—

  • at the time a decision relating to the matter is being, or is proposed to be, made, and in relation to that matter, a relevant health practitioner has certified, or the Family Court has determined, that the donor is mentally incapable; or

  • a relevant health practitioner has previously certified that the donor is mentally incapable because of a health condition that is likely to continue indefinitely; or

  • a relevant health practitioner has previously certified that the donor is mentally incapable because of a health condition that is likely to continue for a specified time, and the decision about the matter is being made within the specified time.

• an attorney must not act in respect of any other matter relating to the donor's personal care and welfare unless the attorney believes on reasonable grounds that the donor is mentally incapable.

A significant matter relating to the donor's personal care and welfare is defined in section 98(6) of the Act to mean a matter that has, or is likely to have, a significant effect on the health, wellbeing, or enjoyment of life of the donor (for example, a permanent change in the donor's residence, entering residential care, or undergoing a major medical procedure).

A relevant health practitioner is a person—

• • who is, or is deemed to be, registered with a registration authority appointed by or under the Health Practitioners Competence Assurance Act 2003 as a practitioner of a particular health profession; and

• • whose scope of practice enables him or her to assess a person's mental capacity; and

• • who is competent to undertake an assessment of that kind.

In the case of a certificate of mental incapacity issued outside New Zealand, a relevant health practitioner is a person registered as a medical practitioner by the competent authority of the country concerned and whose scope of practice includes the assessment of a person's mental capacity.

A donor may specify in an enduring power of attorney that an assessment of his or her mental capacity be undertaken by a health practitioner with a specified scope of practice (for example, a medical practitioner registered with a general scope of practice, or a nurse whose registered scope of practice is nurse practitioner). Provided that health practitioners who have that scope of practice are able to assess a person's mental capacity, then only a health practitioner with the scope of practice specified by the donor and who is competent to do so may assess the donor's mental capacity and complete the certificate.

The following notes refer to the numbered paragraphs in the form.

• You can appoint only one attorney to act in relation to your personal care and welfare if you become mentally incapable.

• You must appoint an individual as your attorney who is at least 20 years of age, not bankrupt, and not subject to a personal order or a property order under the Act.

• You may not appoint a trustee corporation to be your attorney. A trustee corporation is the Maori Trustee, Public Trust, and any trustee company within the meaning of the Trustee Companies Act 1967.

• You can authorise your attorney to act on your behalf in relation to all of your personal care and welfare matters, or only some of your personal care and welfare matters. If you want your attorney to act only in relation to some of your personal care and welfare matters, you must specify what those matters are.

• Your attorney will not, under section 98(4) of the Act, be able to act on certain matters. These are—

  • • to make any decision relating to the entering into marriage or civil union by you, or to the dissolution of your marriage or civil union; or

  • • to make any decision relating to the adoption of any child of yours; or

  • • to refuse consent to the administering to you of any standard medical treatment or procedure intended to save your life or to prevent serious damage to your health; or

  • • to consent to the administering to you of electro-convulsive treatment; or

  • • to consent to the performance on you of any surgery or other treatment designed to destroy any part of the brain or any brain function for the purpose of changing your behaviour; or

  • • to consent to you taking part in any medical experiment other than one to be conducted for the purpose of saving your life or of preventing serious damage to your health.

  Under section 98A of the Act, your attorney’s paramount consideration is the promotion and protection of your welfare and best interests, while seeking at all times to encourage you to exercise your own capacity and act on your own behalf to the greatest extent possible.

• If you want to place conditions or restrictions on your attorney's authority, you must specify what those conditions or restrictions are.

• You can appoint another individual to be your successor attorney in the event that your original attorney’s appointment ceases. Section 106(1)(c) to (f) of the Act sets out the circumstances when an attorney's appointment ceases, as follows:

  • • the attorney gives notice of disclaimer in accordance with section 104 of the Act. Disclaimer means that the attorney refuses to accept or continue the responsibility of being your attorney; or

  • • the attorney dies, or is adjudged bankrupt, or becomes a patient within the meaning of the Mental Health (Compulsory Assessment and Treatment) Act 1992 detained in a hospital under that Act, or becomes subject to a personal order or a property order under the Act, or otherwise becomes incapable of acting; or

  • • a Family Court revokes the appointment of the attorney pursuant to section 105 of the Act.

• When acting on your behalf under the enduring power of attorney, your attorney must, as far as is practicable, consult with you.

• You may specify one or more persons with whom your attorney must, as far as is practicable, also consult when making decisions under the enduring power of attorney.

• In respect of each of these persons, you must state the personal care and welfare matters on which your attorney is required to consult with them.

• You may wish your attorney to consult with those persons on all matters, or only in respect of certain kinds of matters or particular matters.

• If you appoint a separate attorney or separate attorneys in relation to your property affairs, your attorneys must consult each other regularly to ensure that your interests are not prejudiced through any breakdown in communication between them. An attorney's duty to consult is set out in section 99A of the Act.

• You can specify one or more persons who are to be provided with information relating to the exercise of the attorney's powers under the enduring power of attorney on request. In respect of each person, you must specify the kind of information to be provided to that person.

• Under section 99B of the Act, your attorney is required to promptly comply with a request made by any of those persons for information relating to the exercise of the attorney's powers if the information requested is of the kind that you have specified is to be provided to that person.

• You can specify that any assessment of your mental capacity be undertaken by a health practitioner with a specified scope of practice. The scope of practice must include the assessment of mental capacity. Note that if you were to become mentally incapable while overseas, special provisions apply to assessment of capacity.

Before signing this document, you must receive an explanation of the effects and implications of it and other matters from the person who witnesses your signature, and that person must also give a certificate as to certain matters. The witness must be a lawyer, an authorised officer of a trustee corporation, or a qualified legal executive who is independent of the attorney. However, if the attorney is appointed in his or her capacity as a lawyer, another lawyer or qualified legal executive in the lawyer’s firm can witness your signature. Likewise, if the attorney is a trustee corporation, an authorised officer of the corporation can witness your signature.

A qualified legal executive must be a member of, and hold a current annual registration certificate issued by, the New Zealand Institute of Legal Executives Inc, have at least 12 months experience as a legal executive, and be employed by, and under the direct supervision of, a lawyer.

Your attorney’s signature to this document must be witnessed by a person who is not the same person who witnessed your signature to the enduring power of attorney. You cannot act as witness to the attorney’s signature.

If you appoint a successor attorney, he or she must also sign the document, and the signature must also be witnessed by a person who is not the witness to your signature. You cannot act as witness to the successor attorney’s signature.

Once this document is signed, you can revoke it at any time by giving notice in writing to the attorney and to any successor attorney.

If you become mentally incapable and subsequently recover capacity, you are entitled to suspend your attorney’s power to act under the enduring power of attorney by giving the attorney written notice. The suspension does not revoke the enduring power of attorney, and your attorney will be able to act under it again if you are again certified as (or the Family Court decides you are) mentally incapable.

Forms that may be used to give notice of revocation or notice of suspension are set out in the Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008.

You should send a copy of this document to people or organisations that the attorney may have dealings with under the enduring power of attorney (for example, your doctor or any person providing care services to you).

Form 3
Certificate of witness to donor's signature on enduring power of attorney

Section 94A(7), Protection of Personal and Property Rights Act 1988

I, [full name, address, occupation of witness], certify that—

• 1 For this paragraph select the statement that applies.

  Statement A

  I witnessed the signature of the donor, [full name of donor], on the attached enduring power of attorney form.

  Statement B

  I witnessed the signature of [full name], who signed the attached enduring power of attorney form in the presence of the donor and by the direction of the donor.

• 2 For this paragraph select the statement that applies.

  Statement A

  I am a lawyer who holds a current practising certificate as a barrister/barrister and solicitor* issued by the New Zealand Law Society.

  *Select one.

  Statement B

  I am a legal executive and I—

  • • am a member of the New Zealand Institute of Legal Executives Inc; and

  • • hold a current annual registration certificate issued by the Institute; and

  • • have at least 12 months' experience as a legal executive; and

  • • am employed by, and under the direct supervision of, a lawyer who holds a current practising certificate as a barrister/barrister and solicitor* issued by the New Zealand Law Society.

  *Select one.

  Statement C

  I am an officer/employee* of [name of trustee corporation], a trustee corporation, and I am authorised by [name of trustee corporation] to witness the signature of a donor of an enduring power of attorney.

  *Select one.

• 3 For this paragraph, select one of the following statements in respect of each attorney (and in respect of each successor attorney) appointed by the enduring power of attorney.

  Statement A

  I am a lawyer/legal executive* in the same firm as [name of attorney], who, in his/her* capacity as a lawyer, is appointed as attorney/successor attorney* under the enduring power of attorney.

  *Select one.

  Statement B

  I am an officer/employee* of [name of trustee corporation], that is appointed as attorney/successor attorney* under the enduring power of attorney, and I am authorised by [name of trustee corporation] to witness the donor's signature.

  *Select one.

  Statement C

  I am independent of [name of attorney], who is appointed as attorney/successor attorney* under the enduring power of attorney.

  *Select one.

• 4 Before the donor signed the enduring power of attorney form, I explained the effects and implications of the enduring power of attorney to the donor and advised the donor of—

  • (a) the matters referred to in the notes to the prescribed form of power of attorney; and

  • (b) the donor's right to suspend or revoke the power of attorney; and

  • *(c) Include this paragraph only if the enduring power of attorney is in relation to the donor's property.

  • the donor's right to—

    • • appoint more than one attorney, or a trustee corporation as attorney; and

    • • stipulate whether, and, if so, how, the attorney's dealings with the donor's property are to be monitored.

• 5 I have no reason to suspect that the donor was or may have been mentally incapable at the time he/she* signed the enduring power of attorney form.

  *Select one.

• 1 This certificate is required to be attached to the enduring power of attorney form.

• 2 The term trustee corporation means the Maori Trustee, Public Trust, and every trustee company within the meaning of the Trustee Companies Act 1967.

Form 4
Health practitioner's certificate of mental incapacity for enduring power of attorney in relation to property

Sections 97(5) and 99D, Protection of Personal and Property Rights Act 1988

I, [full name, address, registration number of health practitioner], a health practitioner, certify that—

• 1 I am a health practitioner registered, or deemed to be registered, with [specify responsible registration authority appointed by or under the Health Practitioners Competence Assurance Act 2003] as a practitioner of [state particular health profession].

• 2 For this paragraph—

  • • select Statement A if the donor has not specified in the enduring power of attorney that his or her mental capacity be assessed by a health practitioner with a specified scope of practice; or

  • • select Statement B if the donor has specified in the enduring power of attorney that his or her mental capacity be assessed by a health practitioner with a specified scope of practice.

  Statement A

  My scope of practice includes the assessment of a person's mental capacity.

  Statement B

  My scope of practice—

  • • includes the assessment of a person's mental capacity; and

  • • is the same as that specified in the enduring power of attorney.

• 3 On [date] I examined/assessed* [full name of donor], the donor of the enduring power of attorney in relation to property dated [date enduring power of attorney was signed], to ascertain his/her* mental capacity.

  *Select one.

• 4 In my opinion, the donor is mentally incapable because he/she* is not wholly competent to manage his/her* own affairs in relation to his/her* property.

  *Select one.

• 5 The reasons for my opinion are: [specify].

Please note—

• this form must be used if the certificate of mental incapacity is issued in New Zealand:

• if the certificate of mental incapacity is issued outside New Zealand, the certificate must be in a form acceptable to the competent authority of the country concerned:

• these guidelines are intended to help health practitioners complete the certificate of mental incapacity for an enduring power of attorney in relation to property.

• The purpose of the health practitioner certificate is to record the opinion of an appropriate health practitioner about the mental capacity of a person (a donor) who has set up an enduring power of attorney (EPA) under the Protection of Personal and Property Rights Act 1988 (the Act).

  An attorney appointed under an EPA in relation to property cannot act unless—

  • • a relevant health practitioner has certified that the donor is mentally incapable; or

  • • a Family Court has determined that the donor is mentally incapable; or

  • • the EPA was set up in a form that authorised the attorney to act immediately after it was signed.

• The certificate of mental incapacity must be completed by a relevant health practitioner. A relevant health practitioner is a person—

  • • who is, or is deemed to be, registered with a registration authority appointed by or under the Health Practitioners Competence Assurance Act 2003 as a practitioner of a particular health profession; and

  • • whose scope of practice enables him or her to assess a person's mental capacity; and

  • • who is competent to undertake an assessment of that kind.

  In the case of a certificate of mental incapacity issued outside New Zealand, a relevant health practitioner is a person registered as a medical practitioner by the competent authority of the country concerned and whose scope of practice includes the assessment of a person's mental capacity.

  A donor may specify in an enduring power of attorney that an assessment of his or her mental capacity be undertaken by a health practitioner with a specified scope of practice (for example, a medical practitioner registered with a general scope of practice, or a nurse whose registered scope of practice is nurse practitioner). Provided that health practitioners who have that scope of practice are able to assess a person's mental capacity, then only a health practitioner with the scope of practice specified by the donor and who is competent to do so may assess the donor's mental capacity and complete the certificate.

• The donor of an enduring power of attorney is mentally incapable in relation to property if the donor is not wholly competent to manage his or her own affairs in relation to his or her property.

  Presumption of competence

  In assessing a donor's mental capacity, a health practitioner must have regard to the presumption of competence in section 93B of the Act. This states that, for the purposes of Part 9 of the Act, every person is presumed, until the contrary is shown, to be competent to manage his or her own affairs in relation to his or her property.

  Imprudent behaviour

  A person must not be presumed to lack competence just because the person manages or intends to manage his or her own affairs in relation to his or her property in a way that a person exercising ordinary prudence would not do in the same circumstances.

  People subject to Mental Health (Compulsory Assessment and Treatment) Act 1992

  A person must not be presumed to lack competence just because that person is subject to compulsory treatment or has special patient status under the Mental Health (Compulsory Assessment and Treatment) Act 1992.

• Although there is no prescribed method of assessing incapacity for the purpose of this certificate, it is important that the practitioner records the reasons for his or her opinion in case it is challenged.

• Where a donor has given written notice to an attorney that the attorney's power is suspended, the attorney cannot act under the enduring power of attorney unless a further certificate is obtained from a relevant health practitioner, or the Court determines that the donor is mentally incapable.

• An assessment for the purpose of issuing a certificate can be requested—

  • • by the attorney (or the successor attorney) for the donor's property; or

  • • by any other person who is seeking the assessment and certificate for the purpose of authorising the attorney to act and who intends to pass the certificate on to the attorney.

  The health practitioner should provide the completed certificate to the person who requests the assessment and certificate.

  It is the responsibility of the person who requests the assessment and certificate to arrange payment for the assessment and certificate. This payment is recoverable by the person who requests the assessment and certificate as a debt from the donor's property.

• You can find more information about enduring powers of attorney on the New Zealand Law Society website (www.lawsociety.org.nz) and on the Ministry of Justice website (www.justice.govt.nz).

  The law on enduring powers of attorney is set out in Part 9 of the Protection of Personal and Property Rights Act 1988. A copy of this Act can be found on the New Zealand legislation website at www.legislation.govt.nz.

Form 5
Health practitioner's certificate of mental incapacity for enduring power of attorney in relation to personal care and welfare

Sections 98(3) and 99D, Protection of Personal and Property Rights Act 1988

I, [full name, address, registration number of health practitioner], a health practitioner, certify that—

• 1 I am a health practitioner registered, or deemed to be registered, with [specify responsible registration authority appointed by or under the Health Practitioners Competence Assurance Act 2003] as a practitioner of [state particular health profession].

• 2 For this paragraph—

  • • select Statement A if the donor has not specified in the enduring power of attorney that his or her mental capacity be assessed by a health practitioner with a specified scope of practice; or

  • • select Statement B if the donor has specified in the enduring power of attorney that his or her mental capacity be assessed by a health practitioner with a specified scope of practice.

  Statement A

  My scope of practice includes the assessment of a person's mental capacity.

  Statement B

  My scope of practice—

  • • includes the assessment of a person's mental capacity; and

  • • is the same as that specified in the enduring power of attorney.

• 3 On [date] I examined/assessed* [full name of donor], the donor of the enduring power of attorney in relation to personal care and welfare dated [date enduring power of attorney was signed], to ascertain his/her* mental capacity.

  *Select one.

• 4 For this paragraph select the statement(s) that apply.

  Statement A

  In my opinion, the donor is mentally incapable as he/she* lacks the capacity to make a decision about [specify matter relating to donor's personal care and welfare in respect of which a decision is being made, or is proposed to be made].

  *Select one.

  Statement B

  In my opinion, the donor is mentally incapable as he/she* lacks the capacity to understand the nature of decisions about [specify matter relating to donor's personal care and welfare in respect of which a decision is being made, or is proposed to be made].

  *Select one.

  Statement C

  In my opinion, the donor is mentally incapable as he/she* lacks the capacity to foresee the consequences of decisions about [specify matter relating to donor's personal care and welfare in respect of which a decision is being made, or is proposed to be made], or to foresee the consequences of any failure to make such decisions.

  *Select one.

  Statement D

  In my opinion, the donor is mentally incapable as he/she* lacks the capacity to communicate decisions about [specify matter relating to donor's personal care and welfare in respect of which a decision is being made, or is proposed to be made].

  *Select one.

• 5 For this paragraph select the statement that applies.

  Statement A

  The donor's mental incapacity is due to a health condition that is likely to continue for a period of [number] of months/years*.

  *Select one.

  Statement B

  The donor's mental incapacity is due to a health condition that is likely to continue indefinitely.

  Statement C

  The donor's mental incapacity is due to a health condition the duration of which I am unable to determine.

• 6 The reasons for my opinion are: [specify].

Please note—

• this form must be used if the certificate of mental incapacity is issued in New Zealand:

• if the certificate of mental incapacity is issued outside New Zealand, the certificate must be in a form acceptable to the competent authority of the country concerned:

• these guidelines are intended to help health practitioners complete the certificate of mental incapacity for an enduring power of attorney in relation to personal care and welfare.

• The purpose of the health practitioner certificate is to record the opinion of an appropriate health practitioner about the mental capacity of a person (a donor) who has set up an enduring power of attorney (EPA) under the Protection of Personal and Property Rights Act 1988 (the Act).

  An attorney appointed under an EPA in relation to personal care and welfare cannot act on a significant matter relating to the donor's personal care and welfare (see paragraph 4 below) unless a relevant health practitioner has certified that the donor is mentally incapable, or a Family Court determines that the donor is mentally incapable.

• The certificate of mental incapacity must be completed by a relevant health practitioner. A relevant health practitioner is a person—

  • • who is, or is deemed to be, registered with a registration authority appointed by or under the Health Practitioners Competence Assurance Act 2003 as a practitioner of a particular health profession; and

  • • whose scope of practice enables him or her to assess a person's mental capacity; and

  • • who is competent to undertake an assessment of that kind.

  In the case of a certificate of mental incapacity issued outside New Zealand, a relevant health practitioner is a person registered as a medical practitioner by the competent authority of the country concerned and whose scope of practice includes the assessment of a person's mental capacity.

  A donor may specify in an enduring power of attorney that an assessment of his or her mental capacity be undertaken by a health practitioner with a specified scope of practice (for example, a medical practitioner registered with a general scope of practice, or a nurse whose registered scope of practice is nurse practitioner). Provided that health practitioners who have that scope of practice are able to assess a person's mental capacity, then only a health practitioner with the scope of practice specified by the donor and who is competent to do so may assess the donor's mental capacity and complete the certificate.

• The donor of an enduring power of attorney is mentally incapable in relation to personal care and welfare if the donor—

  • (a) lacks the capacity—

    • (i) to make a decision about a matter relating to his or her personal care and welfare; or

    • (ii) to understand the nature of decisions about matters relating to his or her personal care and welfare; or

    • (iii) to foresee the consequences of decisions about matters relating to his or her personal care and welfare or of any failure to make such decisions; or

  • (b) lacks the capacity to communicate decisions about matters relating to his or her personal care and welfare.

  A donor's mental capacity is determined at the time a decision about a significant personal care and welfare matter is being, or is proposed to be, made, and is determined in relation to that matter.

  Presumption of competence

  In assessing a donor's mental capacity, a health practitioner must have regard to the presumption of competence in section 93B of the Act. This states that, for the purposes of Part 9 of the Act, every person is presumed, until the contrary, is shown to have the capacity—

  • (a) to understand the nature of decisions about matters relating to his or her personal care and welfare; and

  • (b) to foresee the consequences of decisions about matters relating to his or her personal care and welfare or of any failure to make such decisions; and

  • (c) to communicate decisions about such matters.

  Imprudent behaviour

  A person must not be presumed to lack mental capacity just because that person makes or intends to make a decision about his or her personal care and welfare that a person exercising ordinary prudence would not make in the same circumstances.

  People subject to Mental Health (Compulsory Assessment and Treatment) Act 1992

  A person must not be presumed to lack mental capacity just because that person is subject to compulsory treatment or has special patient status under the Mental Health (Compulsory Assessment and Treatment) Act 1992.

• The term a significant matter related to the donor's personal care and welfare means a matter that has, or is likely to have, a significant effect on the health, well-being, or enjoyment of life of the donor (for example, a permanent change in the donor's residence, entering residential care, or undergoing a major medical procedure). Note that the health practitioner completing the certificate is not certifying that the matter is a significant matter. The attorney is able to act in relation to personal care and welfare matters that are not significant ones if the attorney believes on reasonable grounds that the donor is mentally incapable. The attorney requires the certificate in order to act in relation to a significant matter. The health practitioner can therefore rely on the attorney's judgement that the matter is a significant one.

  The assessment and certificate relates to a particular significant matter. If and when another significant matter arises, a further assessment and certificate may be required (see paragraph 6 below).

• Although there is no prescribed method of assessing incapacity for the purpose of this certificate, it is important that the practitioner records the reasons for his or her opinion in case it is challenged.

• Further certificates will be required whenever a decision needs to be made about a significant matter relating to the donor's personal care and welfare.

  However, if the health practitioner certifies that the donor is mentally incapable because of a health condition that is likely to continue for a period stated in the certificate, no further certificates will be required during the stated period unless the donor suspends the attorney's power to act.

  If the health practitioner certifies that the donor is mentally incapable because of a health condition that is likely to continue indefinitely, no further certificates as to the donor's incapacity are required unless the donor suspends the attorney's power to act.

  Where a donor has given written notice to an attorney that the attorney's power is suspended, the attorney cannot act under the enduring power of attorney unless a further certificate is obtained from a relevant health practitioner, or the Court determines that the donor is mentally incapable.

• An assessment for the purpose of issuing a certificate can be requested by—

  • • the attorney (or the successor attorney) for the donor's personal care and welfare; or

  • • by any other person who is seeking the assessment and certificate for the purpose of authorising the attorney to act and who intends to pass the certificate on to the attorney.

  The health practitioner should provide the completed certificate to the person who requests the assessment and certificate.

  It is the responsibility of the person who requests the assessment and certificate to arrange payment for the assessment and certificate. This payment is recoverable by the person who requests the assessment and certificate as a debt from the donor's property.

• You can find more information about enduring powers of attorney on the New Zealand Law Society website (www.lawsociety.org.nz) and on the Ministry of Justice website (www.justice.govt.nz).

  The law on enduring powers of attorney is set out in Part 9 of the Protection of Personal and Property Rights Act 1988. A copy of this Act can be found on the New Zealand legislation website at www.legislation.govt.nz.

Form 6
Notice of suspension of attorney's power to act under enduring power of attorney

Section 100A(1), Protection of Personal and Property Rights Act 1988

To [full name of attorney]

I, [full name of donor], being the donor of the enduring power of attorney appointing you as my attorney in relation to my property/personal care and welfare/property and personal care and welfare* dated [date enduring power of attorney was signed], give notice that—

• I am no longer mentally incapable; and

• I suspend your authority to act under the enduring power of attorney.

This notice does not revoke the enduring power of attorney.

• 1 This notice may only be given by a donor who has been mentally incapable, but is no longer mentally incapable.

• 2 A copy of this notice should be sent to each attorney and successor attorney (if any) appointed under the enduring power of attorney.

• 3 The effect of this notice is to suspend the attorney's authority to act under the enduring power of attorney, but it does not revoke the enduring power of attorney. The attorney cannot act under the enduring power of attorney unless the donor is certified to be mentally incapable by a relevant health practitioner or the Family Court determines the donor is mentally incapable.

• 4 A copy of this notice should be sent to the people or organisations that the attorney may have dealings with under the enduring power of attorney (for example, for an enduring power of attorney in relation to property, the donor's bank and lawyer; for an enduring power of attorney in relation to personal care and welfare, the donor's health practitioner and any persons providing care to the donor).

• 5 A copy of this notice should also be sent to any persons named in the enduring power of attorney who the attorney is required to consult.

Form 7
Certificate of non-revocation and non-suspension of enduring power of attorney

Section 103C, Protection of Personal and Property Rights Act 1988

I, [full name, address, occupation of attorney], certify that—

• 1 For this paragraph select the statement that applies.

  Statement A

  On [date], [full name of donor] granted to me an enduring power of attorney to act in relation to his/her* property.

  *Select one.

  Statement B

  On [date], [full name of donor] granted to me an enduring power of attorney to act in relation to his/her* personal care and welfare.

  *Select one.

  Statement C

  On [date], [full name of donor] granted to me an enduring power of attorney to act in relation to his/her* personal care and welfare and his/her* property.

  *Select one.

• 2 I have not received notice of an event revoking my authority to act under the enduring power of attorney.

• 3 I have not received written notice from [full name of donor] suspending my authority to act under the enduring power of attorney.

Definition of an event revoking the power of attorney

An event revoking the power of attorney means any of the following events in which the enduring power of attorney ceases to have effect:

• the donor revokes the power while mentally capable of doing so; or

• the donor dies; or

• the attorney gives notice of disclaimer in accordance with section 104 of the Protection of Personal and Property Rights 1988; or

• the attorney dies, or is adjudged bankrupt, or becomes a patient within the meaning of the Mental Health (Compulsory Assessment and Treatment) Act 1992 detained in a hospital under that Act, or becomes subject to a personal order under Part 1 of the Protection of Personal and Property Rights Act 1988 or a property order under Part 3 of the Protection of Personal and Property Rights Act 1988, or otherwise becomes incapable of acting; or

• in the case of an enduring power of attorney that appoints more than one attorney with joint but not several authority, one of the attorney's dies, or is adjudged bankrupt, or becomes a patient within the meaning of the Mental Health (Compulsory Assessment and Treatment) Act 1992 detained in a hospital under that Act, or becomes subject to a personal order under Part 1 of the Protection of Personal and Property Rights 1988, or a property order under Part 3 of the Protection of Personal and Property Rights 1988, or otherwise becomes incapable of acting; or

• a Court revokes the appointment of the attorney pursuant to section 105 of the Protection of Personal and Property Rights 1988.

Form 8
Notice of revocation of enduring power of attorney

Section 106(1)(a), Protection of Personal and Property Rights Act 1988

To [full name of attorney]

I, [full name of donor], being the donor of the enduring power of attorney appointing you as my attorney in relation to my property/personal care and welfare/property and personal care and welfare* dated [date enduring power of attorney was signed], give notice that I revoke the enduring power of attorney.

• 1 This notice may only be given if the donor is mentally capable of revoking the enduring power of attorney.

• 2 A copy of this notice should be sent to each attorney and successor attorney (if any) appointed under the enduring power of attorney.

• 3 The effect of this notice is to revoke the enduring power of attorney. The attorney's authority to act under the enduirng power of attorney ceases on receipt of this notice.

• 4 A copy of this notice should be sent to the people or organisations that the attorney may have dealings with under the enduring power of attorney (for example, for an enduring power of attorney in relation to property, the donor's bank and lawyer; for an enduring power of attorney in relation to personal care and welfare, the donor's health practitioner and any person providing care to the donor).

• 5 A copy of this notice should also be sent to any persons named in the enduring power of attorney who the attorney is required to consult.