This Part 3 of my 3 part series on Enduring Powers of Attorney, explores matters to consider in Preparing an Enduring Power of Attorney (Care and Welfare) (“EPA Care and Welfare”).
You don’t need to have all your answers lined up before you get advice on an EPA Care and Welfare but it certainly helps to process the questions in your mind. The following list includes 10 key things to think about:
1. Do you need to cancel any previous EPA Care and Welfare appointment?
If you have prepared an EPA Care and Welfare before, you may need to cancel the appointment. If so, the attorney/s named in the previous power of attorney need to be formally notified in writing by you, your lawyer or your new attorney/s.
2. Who would you like to be named as your attorney/s – will they agree?
You can only name one attorney to act at any one time in relation to care and welfare matters.
The person you appoint should be over 18 years of age, competent and trustworthy. You should talk with that person or people about the role you are asking them to adopt and your expectations. You will need their full name, address and contact details to complete your instructions.
3. Do you want to name a successor attorney/s (in case the first named attorney is unable to continue in that role) – will they agree?
I recommend you do nominate a successor attorney if possible as it means the document will survive should there be any reason why your attorney is unable to act (and therefore be more cost effective).
4. When do you want your successor attorney to act?
When making an Enduring Power of Attorney you must also determine the circumstances under which your enduring and substitute enduring attorneys will act. For example, you might direct that your enduring attorney act only when they are in New Zealand and that you would like your substitute to act when your enduring attorney is out of the country.
5. Should the EPA Care and Welfare apply to all your Care and Welfare decisions or only to some of your Care and Welfare decisions?
In most cases, I would recommend broad powers with the inclusion of conditions only(rather than limitations on powers) if there are concerns about the way specific Care and Welfare matters are to be dealt with.
6. Do you want to impose conditions on any of those powers?
You might for example want to make it a condition that you need to be placed in care that there are certain things you would like taken into account such as if animals are allowed.
7. Who should your attorney consult with and what should they consult about?
The requirement of consultation is a requirement that takes effect before action is undertaken. Examples of persons with whom you may wish your attorney to consult are numerous but obvious ones might include your Enduring Power of Attorney (Property) or lawyer. You will need to provide your adviser with full names, addresses and contact details if you wish to include people to consult.
8. Who should your attorney give information to and what information should they give?
The requirement to provide information takes effect at any time but usually after an action is undertaken. This might involve an attorney providing information to your children or step children for example. By including a provision to disclose information you can help to ensure that your care and welfare matters when in the hands of an attorney are more open to disclosure. You will need to provide your adviser with full names, addresses and contact details if you wish to include people to inform.
9. Should the attorney be entitled to profit from acting as attorney e.g. should attorneys be allowed to charge for their time?
All professional attorneys are entitled to charge fees. This can prove costly for your estate but may be necessary. You may also wish to reimburse an Attorney, professional or otherwise for expenses they incur in helping you.
10. What other terms and conditions would you like to impose?
There are some things you can do with an EPA Care and Welfare and some that you can’t. Your legal adviser will be able to take you through your options.
Be wary of one size fits all EPA Care and Welfare documents. They are like one size fits all Wills. Often ill-fitting and some times not even valid.
Preparing a sound EPA Care and Welfare takes time and consideration and shouldn’t be left until you are in a hurry to get documents done. Make some notes based on the matters raised above, before you go to meet your adviser and you will be well prepared.
Note from the Author
I get plenty of time to think about legal matters while I am on the road.
This blog shares those thoughts and also answers some of the many questions people ask me. Hopefully there is something of interest to you. If there is a subject you would like covered then let me know!
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