Powers of Attorney and Deeds of Delegation – a Practical Focus
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 when suspending or revoking EPAs?
The witness to the 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?
The presenters 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.
- The role of the attorney where the donor is also a trustee.
The presenters will also address some practical topics, including:
- What do you do if an EPA has been lost?
- The importance of picking the right attorney - what if the donor changes their mind about their successor attorney?
- What if the successor attorney has not signed the EPA?
- 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 self and others, at any time while the donor is mentally incapable unless to the extent set out in s 107. What does this mean for attorneys?
- Delegation and certificates under s 31 of the Trustee Act 1956
- Exercise of trustee powers following incapacity
Other cases that will also 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))
This webinar has both practical and theoretical components, but the focus will be on validity and the effective use of EPAs and Powers of Attorney and Deeds of Delegation.
ORIGINAL BROADCAST DATE
1 December 2020
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, the Trusts Act 2019 and the delegation of trust powers and EPAs.
Solicitors and legal executives
Vicki Ammundsen, Director, Vicki Ammundsen Trust Law Limited
Theresa Donnelly, Legal Services Manager, Perpetual Guardian