The Protection of Personal and Property Rights Act 1988 (Act) is an Act to provide for the protection and promotion of personal and property rights of persons who are not fully able to manage their own affairs.
Enduring Powers of Attorney are important life planning documents. At Vicki Ammundsen Trust Law, we have an in-depth knowledge of the Act and are able to advise you what is right for your particular circumstances.
The Act provides the legal mechanism to allow decisions to be made on behalf of a donor (the person granting the power) who is mentally incapable, thus the name enduring power of attorney. “An enduring power of attorney under the Act is a special form of agency and a special form of attorneyship.” [Paragraph [265] Read & Others v Almond [2015] NZHC 2797].
Treneary v Treneary (2008) 27 FRNZ 78 [2009] NZFLR 208 further explains the relationship between the donor and the appointed attorney:
“[55] A person appointed under a power of attorney acts as an agent of the donor. A fiduciary relationship is created between the attorney and the donor. Generally, the donor is entitled to repose trust and confidence in the attorney who has a responsibility in common law to:
- act with absolute openness and fairness to the donor;
- exercise reasonable care in all the circumstances;
- keep the donor’s property separate and be able to account for it;
- avoid any position where the agent’s interests conflict with this duty.”
There are two types of Enduring Powers of Attorney:
- in relation to property; and
- in relation to personal care and welfare.
An enduring power of attorney in relation to property
Property is anything the donor owns, leases, hires, or holds on hire purchase. Property includes any land or buildings, money, investments, goods, shares, stock, machinery, business, household effects, or items such as vehicles, boats, aircraft, and caravans, and any interest in any of those things or right in respect of them.
A donor of an enduring power of attorney may:
(a) authorise the enduring power of attorney to have effect while the donor is mentally capable and to continue to have effect if the donor becomes mentally incapable; or
(b) authorise the enduring power of attorney to have effect only if the donor becomes mentally incapable.
This election is important and needs careful consideration in the context of your circumstances.
You may have more than one attorney in relation to property and may specify certain terms and conditions in your Enduring Power of Attorney.
An enduring power of attorney in relation to personal care and welfare
Personal care and welfare includes your health, well-being, and enjoyment of life, including matters such as where your live and medical treatment you receive.
An enduring power of attorney in relation to personal care and welfare only comes into effect if the donor becomes mentally incapable.
You can only have one attorney in relation to your personal care and welfare and this person can be different to your property attorney. You may specify certain terms and conditions in your Enduring Power of Attorney.
We also have experience in relation to Personal Orders, the appointment of Welfare Guardians and Property Managers and obtaining medical certificate of mental incapacity for Enduring Powers of Attorney.
If you have queries regarding the protection and promotion of personal and property rights, please contact a member of the team at Vicki Ammundsen Trust Law Limited.