Enduring Power of Attorney - Estate Lawyer in Vancouver B.C.
Enduring Powers of Attorney the law · Enduring Powers of Attorney – the law •Buried in Part 9...
Transcript of Enduring Powers of Attorney the law · Enduring Powers of Attorney – the law •Buried in Part 9...
Enduring Powers of Attorney –
the law• Buried in Part 9 Protection of Personal and
Property Rights Act 1988 (PPPR Act)
• Power of attorney - an ordinary or general
power used when you want someone to look
after your affairs for a certain period (eg go
overseas), become invalid once you lose
capacity VS
• Enduring power of attorney – endures from
capacity to losing capacity (s 96)
What is an Enduring Power of
Attorney?
• Created in a legal document
• A ‘Doner’ gives an ‘Attorney’ the power to
make decisions on their behalf if they become
incapacitated or unable to make their own
decisions OR they can’t communicate those
decisions
• You can grant someone that power for care
and welfare and /or property - usually you
make both at the same time
• Anyone over 20
• Not just for older people
• Head injuries, comas, early dementia, early
strokes or other reason
Who should have one?
If no EPA?
• If person does not have capacity:
- There has to be an application to the Courts.
- Court has to appoint a Property Manager and
Welfare Guardian
- Long, expensive process’
- MUCH better to make an EPA prior to
incapacity
How do you get one?
• See a lawyer
• They must write a certificate saying that
you were not unduly influenced etc
• Brought this in because people were doing
them on forms from Whittcoulls
• Keep it in your drawer! No place these are
registered -, that is, with any authority
which is unusual given we register births,
deaths and marriages
How do they work - Property
• Property – can have 1 person or more – to
deal with money, property
• Can be a trustee corporation
• Property Attorney can take over prior to
incapacity – a donor may authorise an
attorney to act in relation to a specific part of
the donor’s affairs or the whole of the
donor’s affairs.
Property Attorney’s duties:• Attorney’s cannot benefit themselves unless
authorised by the donor or the court
• When donor becomes incapacitated, attorney
must promote and protect the donor’s best
interests
• Must consult the donor and other attorney
• The attorney must seek ‘at all times to
encourage the donor to develop the donor’s
competence to manage his or her own affairs’
• Attorney’s must keep records once donor
incapacitated (if not, can be fined up to
$1000)
How do they work - Welfare
• Welfare – can have 1 only but can specify
who they have to consult with
• Person – ‘donor’ is assessed as having lost
mental capacity by health practitioner
• Welfare Attorney then takes over the
decision-making…
• Key point: Unless ‘activated’ an attorney
cannot make decisions on the donors
behalf
Attorney’s duties - Welfare
• Can only be one, can’t be a trustee company
• Must consult the donor as much as they can
• Can make decisions about where donor
lives, medical treatment they receive (if
activated). Check if activated!!!
• Must give due consideration to the impact of
finances when making their decision
• Can’t make decisions about – marriage or
divorce, refuse standard or life-saving
medical treatment, or consent to ECT or
medical experimentation.
Starting Point
• Presumption of competence – ‘until the
contrary is shown’
• A person cannot be presumed to lack
competence just because:
❑they make bad decisions - either in relation to
their property or care and welfare (s 93B) OR
❑they are subject to a Compulsory Treatment
Order under the MH Act
Quiet little document with lots of
Punch• Many legal, ‘personal rights’ that protect our
autonomy as human beings
• Rights in the NZBORA – freedom of
movement, association.
• Common law rights that enable us to deal
with our property as we see fit
• As health consumers (in HDC Code) eg,
informed consent, right to refuse treatment
• An activated EPA cuts across those rights
S 99D
Medical certification of incapacity
A certificate of the donor’s mental incapacity under this Part must—
(a) contain the prescribed information; or
(b) if the certificate is issued outside New Zealand, be in a form
acceptable to the competent authority of the State concerned.
(2) The donor may specify in an enduring power of attorney that the
assessment of his or her mental capacity for the purposes of this Part be
undertaken by a health practitioner with a specified scope of practice, but
only if the scope of practice specified includes the assessment of a
person’s mental capacity.
(3) The cost of any medical assessment or examination reasonably
required for the purpose of certifying whether the donor is mentally
incapable under this Part is recoverable as a debt from the donor’s
property.
Prescribed information?
• Notoriously difficult to find, doctors (and many
lawyers) don’t generally know about it, you
can help them!
• Protection of Personal and Property Rights
(Enduring Powers of Attorney Forms and
Prescribed Information) Amendment
Regulations 2017
• http://www.legislation.govt.nz/regulation/publi
c/2017/0044/latest/whole.html#d56e31
Capacity Tests in law:
• Very clumsy as law can be blunt but there has
to be a legal test
• Property:
‘the donor is mentally incapable because he or she is not
wholly competent to manage his or her own affairs in
relation to his or her property’
• Welfare:(i) that the donor lacks the capacity to make a decision
about a matter relating to the donor’s personal care and welfare
in respect of which a decision is made, or is proposed to be
made:
• (ii) that the donor lacks the capacity to understand the nature of
decisions about a matter relating to the donor’s personal care
and welfare in respect of which a decision is made, or is
proposed to be made:
• (iii) that the donor lacks the capacity to foresee the
consequences of decisions about a matter relating to the
donor’s personal care and welfare in respect of which a decision
is made, or is proposed to be made, or to foresee the
consequences of any failure to make such decisions:
• (iv) that the donor lacks capacity to communicate decisions
about a matter relating to the donor’s personal care and welfare
in respect of which a decision is made, or is proposed to be
made.
Misuse of EPAs
• EPA not activated but attorney assumes
power to make decisions
• Presumption of competence requires you to
inform patient and gain as much consent as
you think a person can understand
Watch for signs of abuse
• Many situations where EPA made (ie have
capacity), then next day or week – get a
certificate to say they don’t have capacity
• Check when an EPA was made (if there is
one) and if it was yesterday – question that!
• Watch for signs of undue influence or
pressure (or bullying!)
Warning!• You may be asked to be a power of attorney for
a client (or former client) – property or welfare
• Politely decline – say I have a policy where I
never do that for clients
• Conflict of interest, plus seen to be ‘gaining a
benefit’ from your relationship
• Would probably be a boundary violation
• Code of Conduct (SWRB) – Principle 1, 1.6
states you need to decline a request
Case of the OT
• PCC v Schlotjes HPDT 446/OT11/187P (2012
case)
• Esme Schlotjes, an occupational therapist in
Raumati was found guilty of professional
misconduct for accepting an enduring power
of attorney for a former client
• Very nearly struck off the OT register (after 30
years in practice)
Facts of case• Esme was client’s community OT for a year
(2004-2005)
• In 2006 the client’s daughter (who often went
to Oz) asked her if Esme would be her fathers
alternative EPA and was told she ‘would be
well rewarded for stepping into this role’
• Esme agreed to be both EPA for property and
care and welfare
• Despite professional relationship had ended
Tribunal found her guilty and fined her $5000
along with an order for costs of $20,000
Review of Attorney’s decisions
• If the property attorney is not managing the
affairs properly or the welfare attorney doesn’t
seem to make good decisions can apply to
Family Ct for a review
• A medical practitioner, social worker, relative,
residential care facility or any other person
with leave of Court can apply for a review
• Family Ct can: monitor, change the terms of
role, give directions or revoke it
Future work for social workers
• Cost barrier for getting an EPA – Public Trust
charge $289 for each property and welfare
(total $578) . A Will costs between $289-
$499. But issue with Public Trust! (Privacy
over Safety – but Principle 11(a) applies)
• ANZASW could lobby MSD for interest free
(recoverable) loans to be provided
• No National register – this needs to be set up
– could be held with IRD or WINZ