# Legal Planning Topic Map — EPAs, Capacity, Wills & Protection > **Purpose:** A practical guide to enduring powers of attorney, mental capacity, wills, trusts, and legal protections for older New Zealanders. This map ties together legal planning documents to help you act before it's too late. > **Key contacts:** Office for Seniors (EPA forms) | Public Trust 0800 371 471 | Community Law (local centre) | Family Court --- ## 1. Ordinary PoA vs Enduring PoA | Feature | Ordinary Power of Attorney | Enduring Power of Attorney (EPA) | | --------------------------------------------- | ---------------------------------------------- | ----------------------------------------------------------------------------------------------- | | **When does it take effect?** | Immediately upon signing | Property EPA: immediately OR on incapacity (you choose). Care & Welfare EPA: only on incapacity | | **What happens if you lose mental capacity?** | **Ends automatically** | **Continues or starts** — this is the key difference | | **Best for?** | Temporary situations (overseas, hospital stay) | Long-term planning for ageing, illness, or dementia | | **Witness requirement** | Any adult (no special requirements) | Must be witnessed by a lawyer, legal executive, or authorised trustee corp rep | | **Legal advice required?** | Recommended but not mandatory | **Required** — a lawyer must explain the effect | | **Governing law** | Common law (no specific statute) | Protection of Personal & Property Rights Act 1988 | ### Decision Guide: Which Do I Need? ``` How long do you need someone to act for you? │ ├─► Short-term / temporary (e.g., overseas trip, hospital recovery) │ └─► → Ordinary Power of Attorney sufficient │ (But note: ends if you lose capacity!) │ └─► Long-term / for future incapacity (e.g., ageing, early dementia, chronic condition) └─► → Enduring Power of Attorney (EPA) is ESSENTIAL (Without it, no one can legally act for you if you lose capacity) ``` --- ## 2. Property EPA vs Personal Care & Welfare EPA There are **two separate EPA documents**. Most people need both. | Aspect | Property EPA | Personal Care & Welfare EPA | | ------------------------------ | ------------------------------------------------------------------------------ | ------------------------------------------------------------------------------- | | **What it covers** | Finances: bank accounts, bills, investments, selling property, paying for care | Health care, living arrangements, daily care, medical decisions | | **When does it start?** | You choose: immediately (while you have capacity) OR only on incapacity | **Only when you lack capacity** — the attorney cannot act while you are capable | | **Who determines incapacity?** | If "springing": a doctor certifies you lack capacity | A doctor must certify you lack capacity | | **Can attorney act jointly?** | Can appoint joint attorneys (must act together) or several (independently) | Same — but must appoint same person(s) or different | | **Record-keeping** | Attorney must keep proper financial records | No formal record-keeping requirement | | **Can it be revoked?** | Yes, while you have capacity | Yes, while you have capacity | ### Decision Guide ``` What decisions do you want someone to make for you? │ ├─► Financial decisions (banking, bills, selling property, investments) │ └─► → Create a **Property EPA** │ TIP: Consider "springing" (effective only on incapacity) if you want │ to remain in control while capable │ ├─► Health care & living decisions (where you live, medical treatment, daily care) │ └─► → Create a **Personal Care & Welfare EPA** │ TIP: This only works when you can't make decisions — no loss of control while capable │ └─► Both? — CREATE BOTH DOCUMENTS AT THE SAME TIME └─► This is the recommended approach from the Office for Seniors ``` --- ## 3. Mental Capacity — What It Means ### Definition Mental capacity (or "competence") means the ability to: - Understand the nature and consequences of a decision - Retain that information long enough to make the decision - Weigh up the information as part of decision-making - Communicate the decision (by any means) ### Who Assesses It? | Situation | Who Assesses | | -------------------------------------------- | ------------------------------------------------------------------------------ | | Before creating an EPA | The witnessing lawyer must be satisfied you have capacity | | EPA becomes active (Personal Care & Welfare) | A doctor certifies you lack capacity | | EPA becomes active (Property — springing) | A doctor certifies you lack capacity | | Family Court appointment | A doctor's report is usually required; Court may appoint a specialist assessor | | Disputed capacity | Court may order a formal capacity assessment | ### Common Trigger Points - Dementia diagnosis (especially Alzheimer's, vascular dementia) - Severe stroke - Traumatic brain injury - Advanced Parkinson's disease - Severe mental illness (e.g., psychosis, severe depression) - Intellectual disability (if no existing arrangements) - Delirium (temporary — may resolve) ### What Happens at Each Stage | Stage | Person Has Capacity? | Can They Make Decisions? | | ---------------------- | -------------------- | -------------------------------------- | | Create EPA | ✅ Yes | Yes — they can sign the EPA themselves | | EPA activates | ❌ No longer capable | No — attorney takes over | | No EPA, loses capacity | ❌ No longer capable | No one — must go to Family Court | --- ## 4. Creating an EPA ### Requirements | Requirement | Detail | | ------------------------------- | --------------------------------------------------------------------------------------------------------------- | | **Form** | Must use the standard Office for Seniors form (Property EPA and/or Personal Care & Welfare EPA) | | **Signing** | Signed by the donor (person creating it) | | **Witness** | Must be witnessed by a lawyer, legal executive, or representative of a trustee corporation (e.g., Public Trust) | | **Lawyer's explanation** | The witnessing lawyer must explain the effect of the EPA to the donor | | **Capacity at time of signing** | The donor must have mental capacity | | **No undue influence** | The lawyer must be satisfied the donor is not being pressured | ### Estimated Costs | Item | Cost | | -------------------------------------------------------- | ------------------------------------------- | | Lawyer to prepare and witness one EPA | ~$200–$500 | | Lawyer to prepare and witness both EPAs | ~$350–$800 | | Public Trust to prepare both EPAs | ~$400–$600 | | DIY (using Office for Seniors forms + lawyer to witness) | ~$150–$300 (lawyer fee for witnessing only) | ### Where to Get Forms - **Office for Seniors:** officeforseniors.govt.nz — free standard forms - **Public Trust:** publictrust.co.nz - **Community Law:** communitylaw.org.nz — guidance and forms - **Your lawyer** — will provide and prepare forms --- ## 5. No EPA Exists — Family Court Pathway If a person loses mental capacity **without having an EPA in place**, no one can legally make decisions for them. An application to the **Family Court** is required. ### Two Types of Court Order | Order | What It Covers | Threshold | | -------------------- | ----------------------------------------------------------------- | ------------------------------------------------------------------------ | | **Welfare Guardian** | Personal decisions (where to live, medical treatment, daily care) | Person lacks capacity to make these decisions | | **Property Manager** | Financial decisions (income, bills, property, investments) | Person lacks capacity **AND** income >$40k/yr OR property >$25k in value | ### Court Process ``` Step 1: Anyone can apply (family member, carer, social worker, doctor) │ Step 2: Court appoints a lawyer to represent the person (if needed) │ Step 3: Court considers medical evidence of incapacity │ Step 4: Court seeks views of family and carers │ Step 5: Court appoints: ├─► A welfare guardian (often a family member) └─► A property manager (often a family member, Public Trust, or lawyer) │ Step 6: Court reviews orders periodically (usually 1–3 years) │ Cost: Can be $2,000–$10,000+ in legal fees │ Compare: Creating an EPA: $200–$500 — while you still have capacity ``` ### When Court Appointment May Not Be Needed | Scenario | Threshold | Solution | | ----------------------------------------------- | ---------------------- | --------------------------------------------------------------- | | Small savings (<$25k) and low income (<$40k/yr) | Below both thresholds | May not need formal property manager — but seek legal advice | | Joint bank account | Not a full solution | Other account holder can manage joint funds but not sole assets | | Only welfare decisions needed | No financial threshold | Can apply for welfare guardian only | --- ## 6. Wills ### Why a Will Matters - Ensures your assets go to the people you choose - Avoids **intestacy** (dying without a will) — if you die intestate, the Administration Act determines who gets your assets - Can name an **executor** (the person who carries out your wishes) - Can include specific gifts, trusts, and funeral instructions - For parents of minor children: can appoint a guardian ### The Executor's Role - Manages your estate after death - Collects assets, pays debts and taxes - Distributes assets according to your will - Can be a family member, friend, lawyer, or trustee company (e.g., Public Trust) ### When to Update Your Will | Event | Action | | ---------------------------------------- | ---------------------------------------------------- | | Marriage or civil union | Revokes existing will (unless made in contemplation) | | Separation or divorce | Ex-spouse treated as predeceased for will purposes | | Birth of children/grandchildren | Consider updating | | Purchase of significant assets | Estate planning review | | Entering aged care or retirement village | Review — care costs impact estate | | EPA created or changed | Should align with will | ### Intestacy Risks Without a will, your estate is distributed according to law: - Spouse/partner gets personal chattels + $155,000 (or whole estate if no children) - Children share the remainder - If no spouse or children, goes to parents, then siblings, then wider family - If no relatives found, goes to the Crown --- ## 7. Trusts ### Family Trusts Family trusts are commonly used by older New Zealanders for: - **Asset protection** — protecting assets from future care costs (subject to RCS gifting rules) - **Estate planning** — controlling how assets pass to beneficiaries - **Protection from relationship property claims** - **Tax planning** in some circumstances **Important:** Gifting rules apply for RCS purposes — assets gifted in the 5 years before applying for RCS can be counted back. ### Prepaid Funeral Trusts A prepaid funeral trust allows you to set aside funds for your funeral that are **exempt from the RCS asset test** (up to $10,000 per person as at 2026). | Feature | Detail | | ------------------ | -------------------------------------------------------- | | Exempt amount | Up to **$10,000** exempt from RCS asset test | | Purpose | Pre-paid funeral costs (funeral director, plot, service) | | Who provides | Funeral directors, Public Trust, some trustees | | RCS impact | Does not count towards $291,825 asset limit | | Additional amounts | Any amount over $10,000 counts as an asset | --- ## 8. Cross-References ### Captures in This Folder (06 Legal and Financial Planning) | File | Relevance | | ----------------------------------------------------------------------------------- | ----------------------------------------------------------- | | `2026 - Law Society - Web Capture - Powers of Attorney.md` | Legal requirements for EPA, witness rules, joint vs several | | `2026 - CAB - Web Capture - Enduring Powers of Attorney.md` | Plain English overview, Family Court thresholds ($40k/$25k) | | `2026 - Community Law - Web Capture - Enduring Powers of Attorney Guide.md` | Full legal context, attorney duties | | `2026 - Community Law - Web Capture - Protection for Older People Against Abuse.md` | Elder abuse, financial abuse, EPA misuse protection | | `2021 - Office for Seniors - EPA Property Form.pdf` | Official Property EPA form | | `2021 - Office for Seniors - EPA Personal Care and Welfare Form.pdf` | Official Personal Care & Welfare EPA form | | `2025 - Office for Seniors - Enduring Power of Attorney A4 Guide.pdf` | Easy-read EPA guide | | `2023 - Public Trust - Trusts Act 2019 Overview.pdf` | Trusts Act changes | | `2025 - Public Trust - Family Trusts Brochure.pdf` | Family trust information | | `2024 - Public Trust - Wills and EPAs Brochure.pdf` | Combined will + EPA planning guide | | `2025 - Public Trust - Estate Administration Guide.pdf` | What happens after death | | `2017 - MSD - EPA Standard Explanation Property.pdf` | MSD's official explanation of Property EPA | ### Other Folders | Folder | Relevance | | ------------------------------- | ------------------------------------------------------ | | **08 Elder Abuse and Advocacy** | Financial abuse, EPA misuse, Age Concern services | | **07 Dementia and Health** | Capacity assessments, dementia diagnosis | | **05 Funding and Subsidies** | RCS asset test, prepaid funeral trust exemption ($10k) | ### Key Contacts | Who | Role | Contact | | ---------------------------- | -------------------------------------------------- | ------------------------------------------- | | Office for Seniors | EPA forms and resources | officeforseniors.govt.nz | | Public Trust | EPA, wills, trusts, estate administration | 0800 371 471 | | Community Law | Free legal advice on EPAs, wills, elder protection | Local centre (find via communitylaw.org.nz) | | NZ Law Society | Find a lawyer for EPA/wills | lawsociety.org.nz | | Family Court | Welfare guardian, property manager applications | justice.govt.nz/family | | Age Concern NZ | Elder abuse support, advocacy | 0800 652 105 | | Elder Abuse Response Service | Free, confidential help | 0800 32 668 65 |