Acting as a personal care and welfare attorney

|

Harry’s father was diagnosed with Alzeihmer’s five years ago. It was not until recently that Harry noticed a real decline in his father’s memory and ability to carry on conversation. Harry began to worry about his father being at home by himself and his ability to make decisions about his health.

Harry remembered his father had signed Enduring Power of Attorney (EPOA) documents a number of years back but had no idea how to use the documents or what powers they gave him.

Understanding the purpose of invoking an EPOA can ensure the right decisions are being made for an individual when they can no longer make decisions themselves. Below is a list of common questions and answers to help you understand the role of an enduring power of attorney for personal care and welfare. 

When can an Enduring Power of Attorney for Personal Care and Welfare be invoked?

An Enduring Power of Attorney for Personal Care and Welfare can only be invoked when an individual has been certified as mentally incapable. Mentally incapable is defined as someone who:

(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.

If you suspect an individual may be in this position then, check the wording of the enduring power of document to see who may make the determination of incapacity. It may be a general practitioner or it may be a specialist such as a Geriatrician. Once this has been determined, the relevant person can examine the individual to assess whether the power of attorney should be activated.   

How is an enduring power of attorney document actually used?
The individual’s lawyer will normally store the original enduring power of attorney document. Copies of the power of attorney should also be given to the individual’s doctor and care facilities. If you’ve been appointed as the attorney, you should be made clear of your role so when the individual is no longer capable of making decisions you will immediately be able to step in and make those decisions on their behalf. 

What decisions can I make if I have been appointed someone’s attorney?
Types of decisions an attorney for personal care and welfare can make are: 

  • Selecting a rest home for the donor
  • Deciding what medical treatment the donor is to receive

Types of decisions an attorney for personal care and welfare cannot make are:

  • The refusal of live-saving medical treatment
  • Any decision relating to marriage or divorce
  • The consent of medical experimentation

What are my obligations when I am appointed as an attorney?
You must act according to your legal obligations and the power of attorney document itself.

As an attorney, your paramount consideration is the promotion and protection of the donor’s welfare and best interests, while seeking at all times to encourage the donor to exercise their own capacity and act on their own behalf to the greatest extent possible.

Under the power of attorney document you may have obligations to consult with or provide information to other people, such as your siblings for example, before exercising your power of attorney.

How long may I act as an attorney for?
If you become bankrupt or incapacitated yourself, the power of attorney will lapse. The power of attorney may also be revoked or suspended by the donor simply by them providing you with notice in writing.

If the donor passes away, the power to act as attorney ceases and the affairs of the deceased will become the responsibility of the administrators / executors of the estate.

If you have any questions regarding your role as an attorney appointed under an enduring power of attorney please contact, Ellen Harbidge by phone on 09 837 6890 or email ellen.harbidge@smithpartners.co.nz

For equally timely and up-to-date articles related to Wills &Trusts, subscribe to our bi-monthly newsletter today!

Latest News
Law Scholarship Little Smith and Partners
Vote for the Law Scholarships People's Choice Award
05/10/2017
Voting is now open for the Smith and Partners Law Scholarships 2017 People's Choice Award. Read the "What Makes West Auckland Great"......
Read more >>
Law Scholarship Little Smith and Partners
2017 Smith and Partners Law Scholarships Announced
28/09/2017
We’re delighted to announce that we have selected seven incredible finalists for the 2017 round of the Smith and Partners Law Scholarships. Jordan Denton......
Read more >>