Enduring Powers of Attorney

An EPOA, for someone to act on behalf of another, must be given before a person becomes incapable of understanding and making such a decision.
  • The EPOA does not give authority to unplug life support systems.
  • EPOAs have been used to embezzle money from vulnerable people.
  • Some lawyers have allowed incompetent people to sign an EPOA.
  • When choosing a donor, it is important to choose someone who knows your values and wishes and who you trust.
  • In the absence of an EPOA, a guardian may be appointed who does not know your values and wishes.
An Enduring Power of Attorney (EPOA) is a legal way of giving another person the power to make a decision on one's behalf.

More specifically, an enduring power of attorney does not come into force until the person giving the power becomes mentally incompetent, and then it continues in force (i.e. "endures").

Under the Protection of Personal and Property Rights Act 1988; a person can be appointed to take health care decisions on behalf of the person giving the power of attorney, for the time when that person is no longer competent.

It is absolutely essential that the EPOA must be given before a person becomes incapacitated and is at least capable of understanding the nature and effect of the power.

The EPOA does not give authority to unplug life support systems even if the patient had given clear instructions while still competent that he/she did not want to be on life support machinery.

"Welfare guardians must consult the person for whom they act, and other interested persons (such as family members), as far as is practicable. They cannot refuse consent to standard lifesaving medical treatment, or treatment that prevents serious damage to the person's health." 1

Misuse of EPOAs
A New Zealand medical practitioner Bill Douglas, says he has seen many cases where the circumstances surrounding an EPOA being given "are at best, suspect and at worst, blatant elder abuse". Situations include:
  • demented people being taken to solicitors by two separate offspring to sign separate EPOAs in favour of the particular offspring without the solicitor realising there were other children or that the person was demented

  • an elderly woman appointing as an attorney a neighbour who then embezzled $40,000 from the bank account

  • a child getting a signed EPOA from a lawyer who had no idea that the parent was demented

  • when faced with two elderly sisters, one of whom was demented, a lawyer had the demented sister sign an EPOA giving power of attorney to the sibling to avoid an application under the PPPR Act
"In many cases, because of my own experiences and the processes the relatives describe, I have considerable reservations as to the person's ability to give the EPOA freely. Often, I am placed in the position of having to accept the family situation as it is presented to me, without knowing the patient's true wishes or the real family situation." 2

The New Zealand Law Commission
The Law Commission has identified several problems regarding EPAs:
  • Lack of monitoring of the donor's capacity when the EPA is signed, and at the point when the EPA comes into force

  • No requirement for independent legal advice on the implications of EPAs, or on the rights of the competent donor to revoke EPAs

  • No requirement to file accounts and no independent monitoring of the acts of the attorney

  • The powers of the Family Court are largely ineffectual because they are reliant on someone else to take action on the donor's behalf if he or she has become incapacitated

  • Donors are reluctant to start court proceedings against family members 3
If euthanasia is legalised, opponents believe that abuses by guardians may include giving permission to withdraw food and water, even when it is against the wishes of the donor.

It is important that, in choosing a guardian, you choose someone you trust and who you know will act according to your wishes.

Unless you have signed an EPOA, appointing someone to make decisions for you if you become unable to do so, a health care provider or court appointed guardian, who doesn't know your values and wishes, may be appointed to make critical decisions for you.

References:
  1. Frances Matthews, "Doctors, elder abuse, and enduring powers of attorney" Journal of the New Zealand Medical Association, 24-September-2004, Vol 117 No 1202
  2. http://www.nz-lawsoc.org.nz/lawtalk/585EPOAs.htm
  3. Law Commission Report no. 71: Misuse of enduring powers of attorney. NZLCR71