Powers of attorney, Paraparaumu Waikanae Otaki

Powers of Attorney

We recommend that when you establish your Will to cater for your property and affairs after your death, you should also consider what would happen to your property and personal affairs during your lifetime if you become mentally incapable, or if you are mentally capable but physically incapable, or physically removed from where your property affairs are handled.

You can establish Enduring Powers of Attorney for both your property and your welfare. This gives the person or persons you appoint as your Attorney the legal power to act for you while you are alive but when you are unable to act for yourself through mental or physical incapacity or physical removal from where your property affairs are handled. You should note a “living Will” has no legal basis and is NOT a substitute for a Power of Attorney. Please see the information on Wills on our website.

Types of Powers of Attorneys

1. Ordinary Power of Attorney
An ordinary Power of Attorney (NOT established under the Protection of Personal & Property Rights Act 1988) allows your attorney to exercise any powers you could exercise yourself while you have legal capacity. Such a Power of Attorney ceases to have effect if you do not have the mental or physical capacity to instruct your attorney.

An ordinary Power of Attorney ceases to have effect as soon as you die or earlier if you revoke the Power of Attorney. Such a Power of Attorney can be as wide or as narrow as you wish to make it. If you grant the Power of Attorney to more than one attorney those attorneys can operate together or each of them on their own. You agree to ratify all actions taken by your attorney under the Power of Attorney.

2. Enduring Powers of Attorney
The major difference between an ordinary Power of Attorney and an Enduring Power of Attorney is that an Enduring Power of Attorney is not revoked if you become mentally incapable. The power has to be given while you are mentally capable and it is therefore vital that you set up your Powers of Attorney sooner than later. There are two types of Enduring Power of Attorney:

(a) Property
This should be granted to someone (or more than one person) who you trust implicitly as you are authorising that person to deal with your property. Restrictions on the extent of the power can be inserted in the document but it is not wise to restrict the power too much in case you become totally incapable, through mental or physical disability, of caring for your own property affairs. We recommend that the property Power of Attorney is established to operate whether you are mentally capable or incapable.

You may for instance be mentally capable but physically incapable, or physically absent form the place that the signing of documents is undertaken. In that case the physical inability to sign documents needs to be catered for. This Power of Attorney allows your attorney to sell or mortgage your house, to manage your business, to control your money and to generally do anything with regard to your property which you could do, if you were able.

We are willing to act for you as your attorney if you have no family member or trusted friend who is available. This is part of this firm’s philosophy of becoming close trusted advisers to you, our client. You can have more than one attorney, in which case your attorneys can act together or separately. You can restrict the power to being exercised jointly only.

(b) Personal Care & Welfare
This Power of Attorney can only be operated to make decisions for your personal welfare if you are mentally incapable. The power can be restricted to specific decision making areas but, as for property, we do not recommend that you restrict the power as you can never be sure in what circumstances you may find yourself. You can provide for more than one attorney to act for you but only one of those attorneys can act at any one time.

3. General
Whether you establish a general Power of Attorney or an enduring Power of Attorney for property or welfare you need to establish it sooner rather than later. It can be too late if you have an accident leaving you with brain or physical damage or you contract a degenerative disease such as alzheimers. As with general Powers of Attorney the enduring Powers of Attorney are revoked on death, or earlier by you, should you so decide.

New Powers of Attorney can be put in place to empower different attorneys should you so decide, unless you are mentally incapable, in which case a Court of Law can change the attorney. This firm wishes to establish long lasting, in depth associations with our clients on the old “general practitioner” basis. We want to know all about you, your family, your property and your business affairs so that we may give you the best advice for your overall requirements.