EPAs & the Protection of Personal & Property Rights Act

There are only two certainties in life: you are born and you die. What happens between these two dates is down to the decisions you make, luck and misfortune. It’s an uncomfortable truth, but the reality is people are rarely adequately prepared for misfortune. Only half of New Zealand’s adults have made a Will, and based on data from the Public Trust, it’s estimated that only 17% of New Zealanders have an Enduring Power of Attorney (EPA).

People often only realise the value of these life-planning documents when it’s too late. There tends to be an assumption the only thing they need to do in terms of preparing for the worst is to write a Will. The logic behind this being that should they lack capacity and be deemed incapable of making decisions, their next of kin, (whether that’s a partner, child, or parent) can automatically legally make decisions for them and manage their affairs. Unfortunately, this assumption is incorrect, and often only comes to light at times of crisis. Noone, including family members, can lawfully make decisions for another person over 18 years old without permission from the Family Court.

What is meant by lack of capacity?

While there is no single legal definition of capacity in New Zealand law, capacity refers to an individuals’ ability to make decisions or take actions that influence their lives. If someone lacks capacity, they cannot understand the nature or foresee the consequences of their decisions or be unable to communicate them and/ or no longer fully competent to manage their own money or property.

Making decisions you do not agree with or living their life in a way that you believe is not right, are not grounds for a Court order to make an order. It is not enough for relatives or loved ones to simply state a person does not have capacity, there is legal process to follow and an assessment to undertake. Courts are sensitive to as to whether an individual is competent to make a decision or they are bending to pressure from others, this is called undue influence.

How do you proactively prepare for potential misfortune? The first step is to make an appointment with Weston Ward and Lascelles’ lawyers in Christchurch, you will need legal advice. Our experienced Wills and Estate lawyers advise clients what information should be included and the decisions they must make. It can feel overwhelming just thinking about it, but with the best legal advice, you will be able to govern how future you will be cared for and supported with an application under the Protection of Personal and Property Rights Act 1988.

The Protection of Personal and Property Rights Act, what does it do?

Also known as the PPPR Act, the Protection of Personal and Property Rights Act 1988, is designed to protect the personal, financial and property rights of people who are not fully capable of managing their own affairs and lack capacity. The PPPR Act allows the Family Court to make orders for the appointment of welfare guardians and property managers, and to grant Enduring Powers of Attorney (EPAs) to protect those who do not have capacity.

What is an Enduring Power of Attorney?

The best way of protecting your future health and wealth is to have an Enduring Power of Attorney in place. An Enduring Power of Attorney is a legal document confirming who can take care of your personal or financial matters should you no longer have capacity.