Okay so you’ve got a Will. That’s great.
Now we know that WHEN you turn your toes up at least there is a plan for who gets what. Life
will be more bearable for your loved ones. You don’t want them having to haggle over who gets what.
But what about if you are still here and still kicking? But you’ve lost your marbles?
I had a client like that once. In fact, I’ve had a number of clients like that over the years. Let me
tell you a typical story that we can all relate to:
Joe was always larger than life. That’s why it was strange when he started to forget things. He
started to make strange decisions. Nobody knew quite why.
The gradual decline had started.
Eventually one day his wife Mary dragged him along to the doctor because he would never get around to doing it himself. She was more than concerned about him, she was at wit’s end.
The doctor told her he was suffering from dementia. Not just forgetful, he was not capable. In
short, he was no longer legally in a fit state to be making decisions for himself.
Because of that his bank wouldn’t let him carry on as if nothing has happened. He couldn’t pay bills or deal with his bank accounts. They’d signed up to sell their home of twenty years and downsize. Now Joe could no longer sign the paperwork, so they were looking at expensive delays. Maybe even cancellation. And if that happened there goes the deposit they paid on the new place. He was pretty much hamstrung. And so was Mary!
Meanwhile the bills keep coming in. Decisions urgently needed to be made about Joe’s health and property that couldn’t be made. Joe wasn’t able to, and nobody else could because they didn’t have the authority to and weren’t about to take the risk.
That’s why Enduring Powers of Attorney are so important. And the frustrating thing is that
some people don’t understand that. Like “it will never happen to me” type approach. Well its
happening to someone every day!
What are Enduring Powers of Attorney then?
An EPA is a document that you sign that gives someone you trust the right to deal with your
affairs. You can decide whether it kicks in now while you are fine, or whether it only kicks in
once you lose capacity.
There are two types – EPA in relation to Property – basically allowing your attorney to deal with your property matters. And EPA in relation to Personal Care and Welfare which allows your attorney to make decisions regarding things like medical treatment. In a lawyer’s attempt at black humour we call this EPA the “flick the switch” one.
Why do you need them?
Simple really. So things can continue to run smoothly if you are alive but don’t have the
capacity to make those decisions. If something happens in your life and a qualified health
practitioner assesses that you can no longer make these decisions yourself – well at least you
have someone who you’ve granted the power to act for you.
But here’s the kicker - if you lose your marbles first and then decide you’d better appoint
someone you’re already too late. Get it done while you still can.
Who should you appoint as your Attorney?
It could be a family member or it could be a professional, or it could be both. Whoever it is
there is one key factor. Trust. You need someone you can trust.
What else is included in the EPA document?
Well it can be a case of “I appoint you to be my attorney for all things”, or it can have other
bells and whistles. For example:
- You can appoint a successor attorney if your first pick can’t act
- You can appoint joint attorneys (for property matters anyway)
- You can require your attorney to give information or consult certain people, such as
family members, before making decisions
Remember your attorney will have to sign a document called a Certificate of Non-revocation
each time they make a decision on your behalf using the EPA.
What if you don’t have Enduring Powers of Attorney?
Think about it. Nothing can happen. It’s a stalemate. But its not the status quo. If it was the
status quo nothing would change. But if no decisions can be made things are changing whether you like it or not.
Those bills that need to be paid – who’s going to pay them now? Your family? Friends?
That medical procedure you need to stay alive – who’s going to tell the doctor to go ahead?
This is not the time for a “she’ll be right” approach to life.
So if you haven’t got EPAs by now and things fall apart you’re going to cause immeasurable
stress to the family. Yes, they can apply for a Court Order to get permission to make decisions
for you. Ten thousand dollars later (or whatever the cost might be now) they’ll have their court
order. What a waste of money when we could have had EPAs in place for about the same as
what you probably spend on takeaways each year.
Give us a call at Queenstown Law and get the job done. While you’re at it we’ll check your Will.
Queenstown Law phone 03 4500000 or russell@queenstownlaw.co.nz or
claire@queenstownlaw.co.nz