Last Updated March 12, 2024
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What is a Power of Attorney?
A Power of Attorney is a document that lets one person appoint another person to act on their behalf concerning finance, real estate, business, and more.
Within a Power of Attorney form, if you grant authority to a representative, you are the donor. The personal representative you appoint is your attorney.
The Protection of Personal and Property Rights Act, 1988 governs Power of Attorney laws in New Zealand.
A Power of Attorney is also known as a/an:
- Ordinary Power of Attorney
- Enduring Power of Attorney
- General Power of Attorney
Can I revoke a Power of Attorney?
You can revoke a Power of Attorney at any time as long as you’re mentally capable of making your own decisions. Revoke the Power of Attorney by giving the attorney written notice.
The Family Court can cancel a Power of Attorney if it believes the attorney isn’t acting in your best interests. The court can also assign you a guardian whose authority overrides your attorney.
Can I share the Power of Attorney?
Yes. You can have more than one person share Power of Attorney.
If you require two or more attorneys to act at the same time, you must decide whether the attorneys need to agree on all actions taken on your behalf or can act independently.
Does a Power of Attorney end at death?
Ordinary and Enduring Powers of Attorney end when the donor passes away. Authority over your property will pass to the executor of your Last Will and Testament.
How do I enact a Power of Attorney?
You can activate any type of Power of Attorney by signing the document. An Enduring Power of Attorney can also come into effect when the donor is mentally incapable of handling their affairs. The attorney may require a medical certificate to activate the Enduring Power of Attorney’s authority if that’s the case.
How do I create a Power of Attorney in New Zealand?
You can create a Power of Attorney by completing LawDepot’s questionnaire. Using our template ensures you complete the following necessary steps.
1. Choose the type of Power of Attorney you need
There are two types of Power of Attorney you can choose from: Ordinary and Enduring. The kind that is best for you will depend on your needs.
Ordinary Power of Attorney
An Ordinary Power of Attorney is valid as long as the donor is competent. This means they're capable of making their own decisions and not incapacitated. Incapacity means a person doesn't have the physical and or mental ability to manage their affairs. If the donor becomes incapacitated, an Ordinary Power of Attorney is no longer valid.
An Ordinary Power of Attorney can start immediately or on a date of your choosing.
For example, suppose your employer asks you to go to Argentina on business for six months. In that case, you can execute an Ordinary Power of Attorney to allow a trusted friend to manage your home, business, and other affairs while you're away. If you become incapacitated while you're away, your attorney's powers end.
Enduring Power of Attorney
An Enduring Power of Attorney is valid whether or not the donor is competent. This validity means it will remain in effect even if you become incapacitated. An Enduring Power of Attorney remains in effect until you revoke it or die.
Usually, the donor will create an Enduring Power of Attorney form to protect their affairs in unforeseen circumstances. However, sometimes a donor will use this document when they’re still capable of making their own decisions but cannot do so due to travel or other circumstances.
An Enduring Power of Attorney goes into effect the moment the donor signs the document unless they explicitly state that the document will become effective when the donor becomes mentally incapable. To sign and bring the Power of Attorney into effect, the donor must be competent.
For instance, if you have a long-term illness like heart disease, you may have a lot to handle on top of your day-to-day affairs. You can execute an Enduring Power of Attorney, effective immediately, to allow an attorney to make decisions for you while focusing on your health. If you become incapacitated for any reason during this time, an Enduring Power of Attorney will allow your appointed attorney to continue acting on your behalf.
The donor is the person who gives the attorney the authority to act on their behalf.
Include the following information about the donor in your Power of Attorney:
- Name
- Address
- Phone number and email (Enduring Power of Attorney form)
The attorney is the person given authority by the donor to act on their behalf. The attorney can either be an individual or trustee corporation.
Include the name and address of your attorney (and successor attorney if applicable) in your Power of Attorney.
An Enduring Power of Attorney requires following additional information:
Phone number
Email
Relationship to the donor
The number of attorneys and how they’ll make decisions together
The attorney doesn’t have to be an actual lawyer but must be at least 20 years old. They also can’t be mentally incapable, bankrupt, or subject to a personal order or property order. The court creates a personal or property order for people who can’t make decisions for themselves or communicate their decisions.
An attorney should be someone who the donor trusts completely, has good financial management skills, and plenty of time to handle their affairs properly.
Your attorney is responsible for:
- Acting in your best interest
- Keeping accurate records of dealings/transactions undertaken on your behalf
- Acting with the utmost good faith and avoiding situations where there is a conflict of interest
- Keeping your property and money separate from their own
It’s a good idea to appoint a successor attorney, but it isn’t always necessary. A successor attorney can only act when the primary attorney can’t continue acting for the donor.
4. State if the attorney will have general authority
Granting an attorney general authority gives them the power to do anything with your property and finances that you could do for yourself if physically present. If you don’t want to give the attorney authority over all aspects of your affairs, you can grant specific powers instead.
Powers are broad and include:
- Buying and selling real estate
- Managing rental properties
- Writing cheques on bank accounts
- Access to safety deposit boxes
- Purchasing insurance
- Collecting any debts due
- Managing business transactions
5. State if the attorney can benefit from the agreement
An attorney benefiting from the decisions they make on your behalf can be a conflict of interest. However, you can grant permission to the attorney to benefit from actions taken on your behalf as long as they also act in your best interests.
6. Outline gift and donation conditions
If the attorney has permission to give gifts and donations to your friends, family, and favourite charities, list who the recipients can be and the maximum amount the attorney can give away.
7. State if the attorney can sign a Will
State in the Power of Attorney if the attorney can sign a Will on your behalf. If so, the attorney will also require authorisation from the Family Court.
8. State if the attorney needs a consultation before making decisions
The attorney must consult you before making decisions about your affairs while you’re mentally capable.
You may want the attorney to consult with your family members when dealing with property of sentimental value, such as a family home, to help ensure they take the family's wishes into account. You may also want the attorney to seek advice from a trusted accountant, financial advisor, or lawyer.
If this applies to your situation, list the properties for which your attorney needs to seek consultation before making any decisions in the Power of Attorney.
You may want to appoint an individual whom the attorney needs to provide information about how they are carrying out their duties.
For example, you can request that your attorney prepares periodic financial statement and send them to their accountant, lawyer, or some other person they choose. However, you should consider paying the attorney for these services.
If you decide your attorney needs to send information to a particular person, list the information the attorney needs to provide and state the person’s:
- Name
- Address
- Phone number
- Email
- Relationship to donor
10. Outline any restrictions on the attorney’s authority
There are many restrictions a donor can place on their attorney. List any restrictions that will limit the attorney's authority in the Power of Attorney.
For example, the donor may wish to live independently as long as possible and have their money spent for that purpose. The donor can also restrict the types of investments the attorney can make with the donor's money (e.g. only government-issued savings bonds).
11. Specify the attorney’s pay
Depending on the relationship they have, the attorney may require the donor to pay for their services.
Specify how you will pay the attorney. For example, they may receive a monthly sum payment or only receive reimbursement for out-of-pocket expenses. Out-of-pocket expenses are expenses that the attorney pays with their own money while performing tasks related to this Power of Attorney. These expenses can include petrol, parking, and administration fees.
12. Outline how/when the Power of Attorney will end
Ordinary Power of Attorney
An Ordinary Power of Attorney will often have a termination date. If you choose to have a termination date, the Power of Attorney will end at 11:59 p.m., local time, on the day you’ve specified.
An Ordinary Power of Attorney also ends if the donor becomes mentally incapacitated or passes away.
Enduring Power of Attorney
An Enduring Power of Attorney doesn’t have a termination date unless the donor includes a termination date in their Power of Attorney form. In this instance, the Power of Attorney is invalid after that date has passed.
An Enduring Power of Attorney remains valid after a donor becomes mentally incapacitated but ends if the donor passes away.
13. Provide signing and witness details
If you can, state when the donor will sign the Power of Attorney.
Ordinary Power of Attorney
A witness to an Ordinary Power of Attorney must be at least 20 years old. They can’t be an attorney or successor attorney for you, your relatives, or your spouse. They also can’t be a partner of any of your attorneys and successor attorneys. The witness also can't live at the same address as any of the attorneys or successor attorneys.
Enduring Power of Attorney
The witness to the donor's signature can't be the attorney or successor attorney. They must be at least 20 years old and either a/an:
- Lawyer
- Employed registered legal executive with at least 12 months experience and directly supervised by a lawyer
- Authorised officer or employee of a trustee corporation
The witness must also explain the effects and implications of the Power of Attorney to the donor and answer any questions the donor may have. The Power of Attorney document provides the standard explanation the witness must give the donor.