There is a focus on mental incapacity of a donor after an Enduring Power of Attorney (EPA) is signed. However, is enough attention paid to mental capacity issues when a donor is entering into and executing EPAs or suspending or revoking EPAs?
The witness to donor’s signature on EPAs only has to certify that they have no reason to suspect that the donor was or may have been mentally incapable at the time the donor signed the instrument (s 94A(7)(b) Protection of Personal and Property Rights Act 1988 (PPPR Act)) but is this sufficient when mental capacity is challenged sometime in the future?
What do you do if an EPA has been lost?
How do powers of attorney translate to trusts?
In this webinar we will discuss:
- the presumption of competence – s 93B PPPR Act.
- the legal test for a donor’s mental capacity to enter into and execute an EPA - Re “Tony” (1990) 5 NZFLR 609 and NJF v MIF FC Rotorua FAM-2008-063-759.
- Revocations of EPAs. Whether they are effective in law “entirely hinges on whether the subject person had capacity to revoke the power of attorney or not” - Mitchell & Ivers v Millard  NZFC 2805.
- Section 102(1) PPPR Act. This section does not specifically provide express jurisdiction for the Family Court to inquire into the capacity of the donor at the time the EPA was entered into and executed, so we need to look at the common law.
- Medical assessments of the donor’s mental capacity and the functional approach to defining capacity used in New Zealand.
We will also address some practical matters including:
- What do you do if an EPA has been lost?
- If an attorney loses capacity, a new attorney needs to be appointed before the donor loses mental capacity. If not, s 106(d) PPPR Act applies and the EPA ceases to have effect. What next?
- An attorney can only disclaim by giving written notice to the donor, if the donor is mentally incapable. Once the donor is mentally incapable, s 104(1)(b) applies.
- What is an attorney under an EPA required to do under the PPPR Act?
- An attorney must not benefit
Other cases that will be referred to include:
- Carrington v Carrington  NZHC 869
- Godfrey v McCormick  NZHC 420
- HF v SZ LCRO 186/90
- Jackson v Jackson  NZHC 860
- Knives v Tickman  NZFC 4047
- Marshall Family Trust  NZHC 472
- RW v T W  NZFC 3117
- W v Public Trustee  NZFLR 277 (HC))
The focus of this webinar, which has practical and theoretical components, will be on validity and the effective use of EPAs and Powers of Attorney and Deeds of Delegation
Attendees will learn:
- The relevant test to create, suspend and revoke an EPA,
- The answers are not always in the PPPR Act – they are found in common law\,
- What is required in relation to medical capacity assessments of the donor,
- How to advise attorneys under EPAs, and
- The interface between the Trustee Act 1956 and the delegation of trust powers and EPAs.
ORIGINAL BROADCAST DATE
26 June 2019
Solicitors and legal executives
Vicki Ammundsen, Director, Vicki Ammundsen Trust Law Limited
Elaine Henderson, Consultant, Vicki Ammundsen Trust Law Limited