An Enduring Power of Attorney (EPA) can be useful when you are no longer able to make decisions for yourself, such as due to an illness, accident, or mental incapacity.  An EPA can help ensure that your care, finances, and wellbeing are taken care of by people you trust. 

An EPA can be used for personal care and welfare, or for property: 

Personal care and welfare

An EPA can be used to give someone you trust the power to make decisions about your personal care and welfare if you are no longer able to.  This could include decisions about your treatment, care, or medications and so on.  If you do not appoint someone before you lose decision-making capacity then the Court will make the decision on your behalf and it might not be someone you trust or would want to be in that position. 

Property

An EPA can be used to give someone you trust the power to manage your money and property if you are no longer able to rather than leave the decision to the Court. This could include decisions about selling your home, accessing your bank accounts, paying your bills, and managing any businesses you own. 

Other benefits

Other benefits of an EPA include:

• An EPA is that can help protect a donor from potential victimisation and abuse.
• As with welfare guardians, property managers and property administrators, an attorney should also be using and maximising support decision-making with the donor.
• The attorney does not always have to use the EPA in all its decision making. There is flexibility in the arrangement.  The EPA can specify whether the attorney can make decisions about property transactions even while the donor is still mentally capable. 
• A donor with an EPA can still enter into a binding contract as long as they have the decision-making capacity to do so. Decision-making capacity is the key here.  A donor must have sufficient decision-making capacity to understand the contract they are signing to make it binding, even if they have an EPA.  However, if the EPA is activated due to a loss of decision-making capacity, the appointed attorney would be responsible for making contracts on their behalf. 
• If a doctor refuses to accept the consent of a donor due to decision-making capacity concerns to a medical procedure and there is a personal care and welfare EPA in place, the doctor can give the attorney a medical certificate so that the attorney can make the decision.
• It is also more likely to ensure your wishes are more likely to be respected, and it can help avoid the stress and expense of your family having to apply to the Family Court to act on your behalf. You can also name people to oversee your attorney's actions and state what information to give to them.

RECOMMENDATION: FASD-CAN recommends caregivers and people with FASD give serious consideration to setting up Enduring Powers of Attorney for both personal care and welfare to come into effect as soon as possible after the age of 18 years of age. 

Property EPA coming into effect

The donor can decide if they want the property EPA to come into effect before they lose decision-making capacity – perhaps they may not want the stress of managing their assets, or perhaps they live overseas and it is easier for someone in Aotearoa New Zealand to manage their financial affairs.  Otherwise the property EPA will not come into effect until they lose capacity. 

Personal care and welfare EPA coming into effect

A personal care and welfare EPA only comes into effect when the donor loses decision-making capacity.

Entering into these arrangements before they are needed means the donor will get to choose who they want in these roles, and the extent of their powers under the EPA.

RECOMMENDATION: If you are thinking of entering into an Enduring Power of Attorney with a person with FASD we recommend you get them to read (or support them to understand) an Easy Read resource from People First NZ first to help them understand what this means. 

People First NZ is a Disabled People’s Organisation (DPO). On their website you can find information and resources to support disabled people. One of these Easy Read resources is a document entitled: Protect your future with an Enduring Power of Attorney. 

You can find it here: Easy Read - Protect your future with an Enduring Power of Attorney