Your will and enduring powers of attorney (EPOAs) are potentially the most important legal documents you’ll create during your lifetime.
Your will determines how your assets are distributed after your death, while your EPOAs ensure that someone is able to manage your wellbeing and property while you’re alive.
Many of our clients choose to grant power of attorney to the same person who they’ve appointed as executor of their will (usually a trusted family member or friend), but the two roles – attorney and executor – are quite different.
It’s important that you and the people you appoint in these roles have a clear understanding of what each role entails to avoid any confusion later down the track.
In this article, Hannah Blewden explains the difference between an executor (as appointed in your will) and an attorney (as appointed in your EPOAs), and covers off the key questions our clients tend to have in relation to these roles.
What is a will?
A will is drafted during your lifetime. It records, amongst other things, how your property is to be distributed after your death.
In your will, you appoint an executor to carry out the directions contained in your will after you die.
Your will can also be used to:
- Appoint a guardian (or guardians) to look after your minor children
- Record any wishes you have in respect of your funeral or remains
When you die, your executor is able to act after probate has been granted to them by the High Court.
What is an EPOA?
The purpose of an EPOA is to appoint someone you trust (your ‘attorney’) to act on your behalf while you’re still alive.
There are two types of EPOA:
- EPOA in relation to personal care and welfare
- EPOA in relation to property
EPOA – personal care and welfare
An EPOA in respect of your personal care and welfare will only come into effect if you become mentally incapable during your lifetime (i.e. if you’re no longer able to make decisions about your care and welfare).
If you lose mental capacity, your attorney will be able to step in and make decisions on your behalf, such as moving you into a care facility or making major decisions about your medical care.
Mental incapacity can only be diagnosed by certain doctors (those who have the appropriate expertise to assess capacity).
EPOA – property
An EPOA in respect of your property covers all the property that’s held in your name (e.g. your home and bank accounts).
You can choose for your attorney’s power to come into effect immediately (i.e. while you are mentally capable) or only if/when you become mentally incapable.
There are a few benefits to having the EPOA come into effect immediately:
- If you’re overseas for an extended period of time, you may wish to have someone in New Zealand who has authority over your assets (in case anything needs to be signed or organised while you’re away)
- If you have an accident that affects you physically but not mentally, it could be practical to have someone who can manage your property affairs while you recover
Limits on an attorney’s powers
When you grant an enduring power of attorney to someone, there are several limits on their power:
- Your attorney must always act in your best interests (the court may intervene if it believes your attorney isn’t doing so)
- There are certain decisions that your attorney is unable to make on your behalf (your lawyer will explain these to you when creating your EPOAs)
- If you’d like, you can impose further restrictions in your EPOAs (e.g. what property can be dealt with and how this property can be dealt with)
- Under both types of EPOAs, your attorney’s powers will no longer be active when you die
That last point is an important one, because it tends to cause a bit of confusion. It’s crucial to let your attorney know that after your death, your EPOAs will no longer be valid. The only people who can handle your assets from that point onwards are the executors of your will.
How we can help
It’s important to put a will and EPOAs in place while you are alive and mentally capable.
If you die without a will, the people you wished to receive a share of your estate may miss out. Others, who you didn’t wish to receive a share, may end up receiving part of your estate.
If you lose mental capacity and don’t have EPOAs in place, your loved ones will need to apply to the court to have themselves appointed as your property manager and/or welfare guardian, which can be a time-consuming, stressful and costly process.
If you’d like us to help you create a will or put EPOAs in place, please get in touch with our team on enquiries@armstrongmurray.co.nz or 09 489 9102.
This article is brief and general in nature. You should not treat it as legal advice and should seek professional advice before taking any action in relation to the matters dealt with in this post. Armstrong Murray accepts no liability for losses suffered by any person or organisation who may rely directly or indirectly on this post.
