Sunday, 26 July 2015

Enduring Power of Attorney for the elderly and dependent ~ proceed with care

Dunedin's historic Law Courts building
What is an Enduring Power of Attorney?
This is the legal structure by which any of us can give authority to another - to one person or more - which enables them to manage our financial and property responsibilities; depending on how it is set up it may also enable them to make decisions about our medical care and other matters relating to our personal welfare should the need arise.

Most of us would hope never to need this, but if we do this set of documents may well be one of the most important that we ever sign.  It is an act of great trust in those we empower to act for us, and, potentially at least, a huge responsibility for those who take it on, so it makes sense to take time to carefully weigh up who we want to have this authority.  The role particularly requires good judgement and mental fitness.  A question to ponder is how we feel about and relate to the people we are choosing to help us; consider also how your prospective candidates manage their own lives.  In my view the role also requires patience, kindness and tact which will be helpful in dealing with a wide range of people, services and situations likely to be encountered.

The role of one's doctor and solicitor (lawyer) can be pivotal so make sure you know and trust these professionals, and if you don't, seek out those you do.

Ideally Enduring Powers of Attorney are established before the need arises as a contingency plan which can be put into action if for any reason we are unable to look after ourselves.  One never knows when illness, sudden accident or emergency may render us helpless and needing those we truly trust to act in our best interests.  Hospitals deal with this sort of situation a lot.  If Enduring Powers of Attorney are already in place it saves delays and arguement and makes things that much easier for everyone. 

The elderly and / or infirm have particular need of this protection and support as they are more vulnerable and more likely to need it.

My terms of reference relate to the New Zealand legal structure which is derived from English law.  However, although the terms and structure will differ from one part of the world to another the concepts and issues are likely to be much the same, so those readers who live outside of New Zealand may still find some of what follows relevant, or at least a starting point for further investigation.

Terminology and structure of Enduring Powers of Attorney (EPA)  as set out in New Zealand law can be read here: 
For the purpose of discussion these points may be useful:
  • The person who is giving authority to another and needing, or potentially needing, that help is referred to (somewhat ambiguosly in my view) as the donor.  
  • The one or more people who take on this responsibility are referred to as attorneys.  
  • Attorneys are then described as having (enduring) power of attorney.  This authority is often referred to in short as EPA.  
  • The EPA document outlines the scope of responsibility and authority of the attorney(s) according to the donor's wishes.  This document is written with the assistance of the donor's solicitor or similarly qualified person.  Everyone named signs the agreement which will then become 'active' in a specified set of circumstances or, if desired, immediately. 
  • There are some things that attorneys never have authority over: marriage, divorce, adoption, and refusing life-saving medical treatment.  (Refer the NZ Ministry of Social Development's website under the heading "What does an attorney do?")

In the United Kingdom the present legal term is now Lasting Power of Attorney (LPA) and the processes there are somewhat different.  You can read about it on the UK government website:

In the United States of America the terminology and structure is different again.  An overview can be found via this link on the National Caregivers Library website:

In New Zealand there are two different types of Power of Attorney:
  • Enduring Power of Attorney for Property - this relates to the handling of finances as well as property and belongings.  The donor can revoke this EPA at any time, unless he or she is considered to be mentally incapable.  It is important to note that only a medical doctor or other suitably qualified medical practitioner has the authority to judge mental incapacity.
  • Enduring Power of Attorney for Personal Care and Welfare - this relates to medical care, treatments, and decisions relating to welfare.  This comes into effect only in the event of mental incapacity, and, as noted above, only a medical doctor or qualified medical practitioner can make this judgement.  I repeat this point as it is a very important one to grasp: when dealing with an elderly and frail person who seems to be increasingly forgetful and confused it may not always be clear where the line is with regard to mental acuity, and it may move around quite a bit over a period of time.  The crux of the matter is that once this EPA is activated the donor is no longer able to make legal decisions or to have control of their own care.  For an elderly and frail person this is a deeply serious situation.  It removes a great deal of choice and transfers it into the hands of whoever is legally in a position to exercise it.  If all goes as planned things will hopefully work out reasonably well, but if we fall out with or strongly disagree with our attorney life could be hell - and in some instances this does happen; legally getting rid of such an attorney and appointing another can be a long, slow and difficult process, or impossible.  
  • Of central importance in the role of any attorney is the following principle:
    "Your attorney’s (or attorneys’) main responsibility is to act in your best interests, and they must involve you in decisions as much as you are able.  [my italics for emphasis]  If you or your family have concerns about their behaviour, applications for help can be made to the Family Court."
    This quotation is from the NZ Ministry of Social Development's website under the heading "What does an attorney do?"

Those named as attorneys in either EPA may be the same people or different - it's up to the donor to decide.  They have different functions and are structured differently:
  • In the EPA relating to property there can be more than one attorney, which may be helpful in sharing the load, whereas...
  • The EPA for personal care can only have one, although it can be set up so that a second person is authorised to take charge if the first person is unable or unwilling to do so.  This is to prevent delays arising from disagreements between attorneys which could hamper the medical care and general welfare of the donor.

Changing an EPA:
For those 'of sound mind' it is possible to change EPAs at any time. 
  • Cancelling an EPA requires that it be revoked.
  • Attorneys can also be suspended for a period of time.
  • In the event of any change attorneys should be notified.
These actions require legal assistance for which a fee can be expected.  In my experience any change to an EPA requires it to be completely redrawn, and the same fee charged as for the original set-up.

The role of attorney is one of considerable power and huge responsibility.  It is a job.  Having said that, in the New Zealand context it is a job that is specifically 'not for reward', so it is not remunerative.  Reimbursement of expenses incurred in the carrying out of such duties may be negotiated, but that's it, so you've got to want to do it, to want to provide the care, go the extra mile and to see the job through - for as long as it takes.

Fortunately Ellen set up her Power or Attorney documents long before she required residential care.  We had attended consultations with her solicitor together, but I didn't read the documents properly and had only a general idea of what was involved.  I filed it where I could find it but that was about it.  I just thought: well, that's done now and I won't have to worry about it.  I had no idea what I was letting myself in for, so that when the time came for me to take over with the EPA for Property, I did not know what was actually involved or how to go about it.  Since then I have become much more careful about reading documents, getting advice, and checking the fine print!

EPA for Property ~ copies of the document and dealing with banks, businesses and service providers:
Once the document has been signed it's vital to have copies, both on paper and in electronic format.  When you contact businesses and service providers on behalf of your donor expect to be asked to provide a copy of the document.  Some businesses will accept a photocopy for their records but others, particularly banks, will insist on receiving a copy which is stamped and signed by the relevant legal powers as being certified "True and correct".  The copy most often requested is the electronic one, so keep it filed where you can easily locate and e-mail it. 

Many service providers, such as insurers and household services providers (for electricity, etc) can be dealt with entirely over the phone and via e-mail, but others, such as banks, require the attorney to front up in person for an appointment with a senior member of staff.  I've had to present my own identification along with a certified "true and correct" copy of the EPA, fill in the banking form in baffling detail, all of which was then entered into Ellen's personal account details.  When doing this yourself you may also be asked to complete a statement declaring that the EPA has not been revoked.  However complex all this may seem these are standard proceedures.

Once these formalities have been completed an attorney can legally sign documents and cheques on behalf of the donor as long as they are within the scope outlined in the EPA document.

Doing business on behalf of the donor should now be plain sailing, but problems can still arise and mistakes occur: 
I have found it pays to check everything, and it helps very much to know who you are talking to.  I strongly advise always writing this sort of work down - in full, so that it can be referred to later.  Even banking staff make mistakes: Ellen and I both have accounts at the same bank, which makes checking my identification easier but on two occasions has led to confusion due to inattention on the part of the tellers who made changes to my accounts rather than Ellen's.  Indeed, in the course of being an attorney for Ellen I have come across more mistakes that I would have thought possible and recouped for her many hundreds of dollars by following these errors up.  I can think of only one instance in which she was undercharged, which of course I rectified right away.  If this happens to you I can assure you that it is not a plot against you or even unusual, and that it pays to keep your eyes open and your wits about you!  Careful attention to detail and firm politeness usually triumphs in most such situations.

Record keeping:
I keep a large A4 diary specifically for recording all the work I do on Ellen's behalf and note all these details in it.  It has been essential, helping to keep tabs on all manner of things, and is my source book for other forms of record keeping.  I will write more about record keeping in a separate article. 

EPA for Personal Care and Welfare ~ dealing with doctors, medical staff and care providers:
This EPA of Ellen's has not been activated and hopefully never will be, but I'm glad to know that it is there in the background and authorises me to take over if the need arises. 

Although privacy laws in New Zealand are strict any one of us is always entitled to be accompanied into interviews and consultations by an advocate or support person if that is our wish, and this is the way I assist Ellen at present.  Although her judgement is good (often disconcertingly acute actually!) and she communicates well her memory can be patchy, so it is important that I attend consultations with her so that I can keep track of things on her behalf and handle most of the paperwork.  This takes a lot of the worry out it for her.  Together we establish lists of things that need attending to, and prepare for consultations by going over them.  Afterwards I make notes and go over them with her again if she wants to.  Occasionally if they are important enough I type them up and give her a copy.  She certainly knows what she wants and with the right prompts and reassurance she is usually fine.  

In addition to this Ellen has formalised access to medical records held by her doctor by signing her permission for me to have this.  This also enables me to discuss issues with him in her absence if need be.  Under normal circumstances I would hesitate to do so, but it can be very helpful at times: one such occasion arose when she was in hospital and I needed advice about understanding what was happening during her hospitalisation and in considering what was likely to be needed in the future. 

Please note also my comments earlier in this article about the limitations imposed by the activation of this EPA.  

I am firmly of the opinion that everyone should be assisted to retain their legal independence in every way that is practicable for as long as possible - it's too important!  And any impulse to step over this line in order to make things easier for the family or attorney should be firmly checked.  A solid alliance with the donor's doctor and solicitor (lawyer) should provide the support needed to back this up.

Please note that this article does not constitute legal advice, and content is drawn from my own experience and reading. 

For further background reading I have included the links below:

To find my other articles in this series click on the link below:

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