# 2026 Legal Source Brief — Family Court and Enduring Power of Attorney

| Field              | Detail                                                |
| ------------------ | ----------------------------------------------------- |
| **Type**           | Legal source brief — EPA disputes in the Family Court |
| **Status**         | Reference                                             |
| **Date**           | June 2026                                             |
| **Classification** | Knowledge Base — Legal and Financial Planning         |

---

## Table of Contents

1. [Purpose and Scope](#1-purpose-and-scope)
2. [When an EPA Is Disputed](#2-when-an-epa-is-disputed)
3. [The Family Court's Role in EPA Matters](#3-the-family-courts-role-in-epa-matters)
4. [Applications to Remove an Attorney](#4-applications-to-remove-an-attorney)
5. [Evidence Needed](#5-evidence-needed)
6. [Cost Implications](#6-cost-implications)
7. [Key Legal Principles](#7-key-legal-principles)
8. [Cross-Reference: Elder Abuse and Financial Exploitation](#8-cross-reference-elder-abuse-and-financial-exploitation)
9. [Practical Guidance for Applicants](#9-practical-guidance-for-applicants)
10. [Key Contacts and Resources](#10-key-contacts-and-resources)

---

## 1. Purpose and Scope

This brief explains **what happens when an Enduring Power of Attorney (EPA) is disputed** in New Zealand. It covers:

- The role of the Family Court in EPA disputes
- Applications to remove or replace an attorney
- The evidence required to challenge an attorney's actions
- The cost implications of EPA litigation
- Key legal principles derived from the PPPR Act and case law
- Cross-references to elder abuse and financial exploitation

This document is part of the NZ Seniors Knowledge Base and should be read alongside:

- `2026 Legal Pathway Brief - PPPR Act EPA Disputes and Capacity.md` (detailed PPPR Act framework)
- `2026 Legal Tracker - EPA PPPR Capacity and Elder Abuse Case Law.md` (key case law)

---

## 2. When an EPA Is Disputed

### Common Dispute Scenarios

| Scenario                          | Description                                                      | Frequency   |
| --------------------------------- | ---------------------------------------------------------------- | ----------- |
| **Attorney misuse of funds**      | Attorney uses donor's money for personal benefit                 | Most common |
| **Disputed capacity**             | Family members disagree about whether donor has/had capacity     | Very common |
| **Undue influence**               | Allegation that donor was pressured into making EPA or decisions | Common      |
| **Attorney conflict of interest** | Attorney's interests conflict with donor's (e.g., inheritance)   | Common      |
| **Family conflict**               | Different family members disagree about who should be attorney   | Very common |
| **Attorney not acting**           | Attorney is unwilling, unable, or failing to act properly        | Common      |
| **Cross-border issues**           | EPA created in another country, recognition disputes             | Less common |
| **Validity challenges**           | EPA was not properly created (witnessing, explanation)           | Less common |

### Who Initiates Disputes

| Party                    | Typical Motivation                                                       |
| ------------------------ | ------------------------------------------------------------------------ |
| **Adult children**       | Concern about parent's welfare or estate; conflict with sibling-attorney |
| **Spouse/partner**       | Concern about exclusion from decisions; financial abuse by step-children |
| **Other family members** | Concern about care quality; suspicion of misuse                          |
| **Health professionals** | Worry that attorney is making decisions contrary to patient's welfare    |
| **Public Trust**         | Where EPA attorney's conduct raises concerns (as statutory supervisor)   |
| **Social workers**       | In cases of suspected elder abuse or neglect                             |
| **The donor themselves** | Where donor still has capacity and wants to revoke or challenge EPA      |

---

## 3. The Family Court's Role in EPA Matters

### Statutory Basis

The Family Court's jurisdiction over EPAs comes from **Part 9 of the Protection of Personal and Property Rights Act 1988** (PPPR Act), specifically:

| Section                | Power                                                                                                               |
| ---------------------- | ------------------------------------------------------------------------------------------------------------------- |
| **s. 102**             | General power to make orders about EPAs, including directions, removal, suspension, and appointment of replacements |
| **s. 103**             | Urgent interim orders (without notice if necessary)                                                                 |
| **s. 107**             | Validity of EPA — court can determine whether an EPA was validly created                                            |
| **Part 2 (ss. 6–29)**  | Welfare guardianship — for decisions beyond EPA scope                                                               |
| **Part 3 (ss. 30–42)** | Property management — if no property EPA exists or attorney removed                                                 |

### Scope of Family Court Powers

The Family Court can:

✅ **Give directions** to an attorney about how to exercise their powers  
✅ **Suspend an EPA** pending further investigation  
✅ **Remove an attorney** and appoint a replacement  
✅ **Declare an EPA invalid** if improperly created  
✅ **Order a capacity assessment** of the donor  
✅ **Revise an EPA** where it no longer meets the donor's needs  
✅ **Make interim orders** for urgent protection  
✅ **Appoint a welfare guardian or property manager** to fill gaps  
✅ **Review attorney's accounts** and order repayment of misused funds

The Family Court **cannot**:
❌ Make criminal findings (fraud, theft — these go to the District Court / Police)  
❌ Change the terms of a validly created will  
❌ Make orders binding on third parties outside NZ

### Relationship with Other Courts

| Court                         | Role                                                                |
| ----------------------------- | ------------------------------------------------------------------- |
| **Family Court**              | Primary jurisdiction for PPPR Act matters, EPA disputes             |
| **High Court**                | Appeals from Family Court; judicial review; complex or novel issues |
| **Court of Appeal**           | Appeals from High Court on questions of law                         |
| **District Court (Criminal)** | Prosecution for fraud, theft by attorney                            |
| **District Court (Civil)**    | Civil claims for breach of fiduciary duty, recovery of funds        |

---

## 4. Applications to Remove an Attorney

### Grounds for Removal

The court may remove an attorney under **s. 102(2)(a)** where:

| Ground                       | Legal Basis                                               | Example                                                              |
| ---------------------------- | --------------------------------------------------------- | -------------------------------------------------------------------- |
| **Breach of fiduciary duty** | Attorney must act in donor's best interests               | Attorney uses donor's funds for own purposes                         |
| **Failure to act**           | Attorney unwilling or unable to perform duties            | Attorney ignores requests for financial support                      |
| **Conflict of interest**     | Attorney's interests incompatible with donor's            | Attorney is also a major beneficiary who benefits from donor's death |
| **Lack of capacity**         | Attorney no longer has capacity to act                    | Attorney develops dementia or serious illness                        |
| **Misconduct**               | Attorney acts improperly or illegally                     | Attorney forges donor's signature                                    |
| **Unsuitability**            | Attorney is not suitable to continue                      | Attorney has criminal record for dishonesty                          |
| **Family breakdown**         | Relationship breakdown prevents effective decision-making | Siblings cannot work together as joint attorneys                     |
| **Failure to consult**       | Attorney excludes donor or family from decisions          | Attorney makes major decisions in isolation                          |

### The Removal Process

```
Application filed (s. 102)
│
↓
Court appoints lawyer for donor (mandatory under s. 65)
│
↓
Case management conference
├─► Directions for evidence
├─► Mediation or settlement discussion
└─► Timeline set
│
↓
Evidentiary hearing
├─► Applicant's evidence
├─► Attorney's response
└─► Medical evidence of capacity
│
↓
Court decision
├─► Remove attorney → appoint replacement
├─► Suspend EPA pending further orders
├─► Dismiss application (if not proven)
└─► Make other orders (accounts, repayment)
│
↓
Possible appeal to High Court (within 20 working days)
```

### Factors the Court Considers

In deciding whether to remove an attorney, the court considers:

| Factor                                               | Weight                                  |
| ---------------------------------------------------- | --------------------------------------- |
| **The donor's wishes** (if ascertainable)            | Heavy                                   |
| **The donor's best interests**                       | Primary consideration                   |
| **Whether the EPA was validly created**              | Threshold issue                         |
| **Nature and seriousness of the breach**             | Central                                 |
| **Whether less drastic measures are sufficient**     | Important (least restrictive principle) |
| **Impact on the donor** (e.g., relocation, distress) | Significant                             |
| **Availability of suitable replacement**             | Practical consideration                 |
| **Views of family and whānau**                       | Weigh accordingly                       |
| **Cultural considerations** (especially for Māori)   | Relevant                                |
| **Previous court orders**                            | Precedent                               |

---

## 5. Evidence Needed

### Types of Evidence

| Evidence Type             | What It Shows                                  | Who Provides                         |
| ------------------------- | ---------------------------------------------- | ------------------------------------ |
| **Affidavits**            | Facts of the case                              | Applicant, family members, witnesses |
| **Medical reports**       | Donor's capacity (at EPA creation and current) | GP, geriatrician, psychiatrist       |
| **Financial records**     | Bank statements, transfers, expenses, accounts | Applicant, subpoena to bank          |
| **Attorney's accounts**   | How attorney has managed funds                 | Attorney (if they exist)             |
| **Correspondence**        | Communications raising concerns                | All parties                          |
| **Property records**      | Land title transfers, mortgage documents       | LINZ, lawyer                         |
| **Social work reports**   | Welfare assessment, family dynamics            | Oranga Tamariki, Health NZ           |
| **Police reports**        | Criminal offending (e.g., theft)               | NZ Police                            |
| **Psychological reports** | Undue influence, coercion                      | Psychologist                         |
| **Expert evidence**       | Financial analysis, capacity assessment        | Independent expert                   |

### Building a Case for Removal

**Minimum evidence package for a contested application:**

1. **Affidavit of applicant** — full chronology of concerns, with specific examples
2. **Medical evidence** — capacity of donor (at relevant times)
3. **Financial evidence** — bank statements showing pattern of misuse
4. **Attorney's response** — their account of events
5. **Statements from other family/witnesses** — corroborating evidence

**Evidence checklist for financial abuse:**

| Document                         | Purpose                                |
| -------------------------------- | -------------------------------------- |
| EPA document (signed, witnessed) | Verify existence and terms             |
| Bank statements (12+ months)     | Identify unusual patterns              |
| Credit card statements           | Identify personal spending by attorney |
| Investment account records       | Check if assets sold or transferred    |
| Land title records               | Check if property transferred          |
| Gifting records                  | Identify excessive gifting             |
| Attorney's accounts              | Compare against bank records           |
| Pension/benefit statements       | Check if funds diverted                |
| Correspondence with attorney     | Document concerns raised               |

### Standard of Proof

The standard of proof in Family Court proceedings is the **balance of probabilities** (civil standard). However, the more serious the allegation (e.g., theft, undue influence), the stronger the evidence must be to satisfy the court.

---

## 6. Cost Implications

### Cost Breakdown

| Item                                               | Typical Cost          |
| -------------------------------------------------- | --------------------- |
| Initial legal advice                               | $300–$600 (1–2 hours) |
| Filing fee (Family Court)                          | ~$100–$200            |
| Lawyer for donor (s. 65 — may be legal aid funded) | $1,500–$5,000         |
| Medical reports (GP)                               | $200–$500             |
| Specialist capacity assessment                     | $800–$2,500           |
| Financial expert report                            | $1,500–$5,000         |
| Your own lawyer (unopposed)                        | $3,000–$8,000         |
| Your own lawyer (contested, 1–2 day hearing)       | $15,000–$40,000+      |
| Your own lawyer (complex, multiple hearings)       | $40,000–$100,000+     |
| Appeal to High Court                               | $20,000–$60,000+      |

### Who Pays

| Situation                              | Who Bears Cost                                            |
| -------------------------------------- | --------------------------------------------------------- |
| **Successful applicant**               | May seek costs from attorney or from donor's estate       |
| **Unsuccessful applicant**             | May have to pay own costs and/or attorney's costs         |
| **Attorney removed**                   | Likely ordered to pay costs (especially if misuse proven) |
| **Public Trust application**           | Costs from donor's estate                                 |
| **Donor's legal costs (s. 65 lawyer)** | Usually from donor's estate                               |
| **Legal aid**                          | Available for the donor (not usually for applicant)       |

### Costs Orders

The Family Court has discretion to make costs orders:

| Outcome                         | Typical Cost Order                          |
| ------------------------------- | ------------------------------------------- |
| Attorney removed for misconduct | Attorney pays costs of all parties          |
| Attorney successfully defends   | Applicant may pay attorney's costs          |
| Mixed outcome                   | No costs order (each party bears own costs) |
| Public Trust involved           | Costs from estate, unless misconduct found  |

### Cost vs Benefit Analysis

| Factor                   | Consideration                                            |
| ------------------------ | -------------------------------------------------------- |
| **Value of estate**      | Is the estate large enough to justify litigation costs?  |
| **Prospects of success** | Do you have strong evidence?                             |
| **Ability to pay**       | Can you fund the litigation?                             |
| **Donor's welfare**      | Is court intervention needed to protect the donor?       |
| **Relationships**        | Will litigation irreparably damage family relationships? |
| **Alternatives**         | Has mediation or other ADR been attempted?               |

---

## 7. Key Legal Principles

### Principle 1: Presumption of Capacity

Every adult is presumed to have mental capacity unless rebutted. The burden of proof lies on the person alleging incapacity. Capacity is:

- **Decision-specific** (capacity may exist for some decisions but not others)
- **Time-specific** (may fluctuate over time)
- **Support-dependent** (a person may have capacity with appropriate support)

### Principle 2: The Least Restrictive Intervention

The court should intervene in the least restrictive manner possible. Removal of an attorney is a significant step — the court will consider whether:

- Directions to the attorney would suffice
- Supervision or reporting requirements would address concerns
- Partial removal (limited powers) is sufficient

### Principle 3: Best Interests

The donor's best interests are the **paramount consideration**. This includes:

- Physical and emotional wellbeing
- Preservation of relationships
- Financial security
- Cultural identity and connection
- Personal autonomy (as far as possible)

### Principle 4: Donor's Wishes (Substituted Judgment)

Where the donor's wishes can be ascertained, the court should give effect to them. This involves:

- What the donor would have wanted if they had capacity
- Any advance care directives or written preferences
- Evidence of the donor's values and beliefs
- The donor's cultural and spiritual preferences

### Principle 5: Fiduciary Duties of an Attorney

An attorney under an EPA owes **fiduciary duties** to the donor. These are the highest standard of care recognised in law:

| Duty                | Content                                       |
| ------------------- | --------------------------------------------- |
| **Loyalty**         | Must act solely in donor's interests          |
| **No conflict**     | Must not place own interests above donor's    |
| **No profit**       | Must not profit from the role                 |
| **Confidentiality** | Must keep donor's affairs confidential        |
| **Duty to account** | Must keep proper records and provide accounts |
| **Duty of care**    | Must exercise reasonable skill and care       |

### Principle 6: Validity of EPA Creation

For an EPA to be valid:

1. **Donor must have capacity** at the time of signing
2. **Proper witnessing** — by lawyer, legal executive, or authorised trustee corp representative
3. **Lawyer's explanation** — the effect of the EPA must be explained
4. **No undue influence** — the donor must act freely and voluntarily
5. **Proper form** — must be in the prescribed form

### Principle 7: The Court's Inherent Jurisdiction

The Family Court also has an **inherent jurisdiction** to protect vulnerable adults, which sits alongside the PPPR Act jurisdiction. This can be used where the statutory framework does not cover the situation.

### Principle 8: Freeing of EPA vs Court Orders

An EPA is a private arrangement that avoids court intervention. The court's role is supervisory — it steps in only where the EPA arrangement has broken down. The policy of the Act is to:

- **Encourage** EPA creation (cheaper, less intrusive, respects autonomy)
- **Minimise** court intervention (least restrictive principle)
- **Supervise and correct** where EPA is not working

---

## 8. Cross-Reference: Elder Abuse and Financial Exploitation

### EPA Misuse as Financial Elder Abuse

EPA misuse is the **most common form of financial elder abuse** in New Zealand. Key data points:

| Statistic                                                        | Source                          |
| ---------------------------------------------------------------- | ------------------------------- |
| Financial abuse accounts for ~50% of all elder abuse cases       | Age Concern NZ                  |
| EPA misuse is the most common form of financial abuse            | Public Trust                    |
| Family members are the perpetrators in ~70% of elder abuse cases | Age Concern NZ                  |
| Older women are disproportionately affected                      | MSD Long-Term Insights Briefing |
| Under-reporting is estimated at 80-90%                           | Age Concern NZ                  |

### Warning Signs of Financial Exploitation via EPA

| Warning Sign                        | What to Look For                                                |
| ----------------------------------- | --------------------------------------------------------------- |
| **Unexplained withdrawals**         | Large cash withdrawals, transfers to attorney's account         |
| **Change in will or beneficiaries** | Donor allegedly changes will to benefit attorney                |
| **Isolation**                       | Attorney restricts contact with other family/friends            |
| **Unpaid bills**                    | Donor's essential bills go unpaid while attorney controls funds |
| **Missing documents**               | Title deeds, account statements, EPA documents disappear        |
| **Reluctance to share information** | Attorney refuses to provide accounts or explain decisions       |
| **Sudden change in lifestyle**      | Donor's standard of living declines sharply                     |
| **Attorney's lifestyle changes**    | Attorney seems to be living beyond their means                  |
| **Joint accounts created**          | Donor's funds moved to joint accounts with attorney             |
| **Property transfers**              | Donor's house transferred to attorney or family trust           |

### Regulatory and Criminal Responses

| Response                               | Body                  | Process                                             |
| -------------------------------------- | --------------------- | --------------------------------------------------- |
| **Family Court**                       | PPPR Act applications | Civil — removal of attorney, appointment of manager |
| **Police**                             | Fraud investigation   | Criminal — prosecution for theft, fraud             |
| **Law Society**                        | Professional conduct  | Complaint against lawyer-attorney                   |
| **Banking Ombudsman**                  | Banking complaints    | If bank failed to protect vulnerable customer       |
| **Public Trust**                       | Statutory supervision | Where Public Trust is involved in estate management |
| **Health and Disability Commissioner** | Care complaints       | If elder abuse occurs in care setting               |
| **Age Concern EARS**                   | Support and advocacy  | Free, confidential elder abuse response             |

### Intersection with Other Legal Issues

| Issue                              | How It Connects                                                                             |
| ---------------------------------- | ------------------------------------------------------------------------------------------- |
| **Undue influence**                | EPA may be challenged if donor was coerced into creating it                                 |
| **Lack of capacity**               | EPA may be invalid if donor lacked capacity when signing                                    |
| **Breach of trust**                | Attorney's fiduciary duties create highest standard of care                                 |
| **Criminal offending**             | Theft, fraud, and forgery by attorney are criminal offences                                 |
| **Family protection claims**       | Misuse of EPA can lead to claims under Family Protection Act                                |
| **Elder abuse restraining orders** | Protection orders available under Domestic Violence Act 1995 (amended to cover elder abuse) |

---

## 9. Practical Guidance for Applicants

### Before Going to Court

| Question to Ask                    | Considerations                                                         |
| ---------------------------------- | ---------------------------------------------------------------------- |
| **Is there a valid EPA?**          | Check the document itself; verify witnessing and signing               |
| **What evidence do I have?**       | Gather documents, statements, financial records                        |
| **Can I afford court?**            | Consider costs vs value of estate; explore legal aid options           |
| **Have I tried alternatives?**     | Mediation, family meetings, lawyer's letter, complaint to Public Trust |
| **Is the donor safe?**             | If immediate risk, seek urgent orders (s. 103)                         |
| **What outcome do I want?**        | Removal? Replacement? Accounts? Supervision?                           |
| **Who will replace the attorney?** | Someone willing and suitable? Public Trust as fallback?                |

### The Mediation Option

Mediation can resolve many EPA disputes without court:

| Advantage                | Disadvantage                       |
| ------------------------ | ---------------------------------- |
| Lower cost ($500–$3,000) | Not binding on unwilling parties   |
| Faster (weeks vs months) | Cannot make legal orders           |
| Preserves relationships  | Attorney may refuse to participate |
| Confidential             | Cannot compel disclosure           |
| Flexible outcomes        | Less enforceable than court orders |

### Self-Representation (Litigant in Person)

Self-representation is possible but **not recommended** for contested EPA disputes:

| Risk                           | Impact                                              |
| ------------------------------ | --------------------------------------------------- |
| Complex procedural rules       | Application may be struck out                       |
| Evidentiary requirements       | Key evidence may not be admitted                    |
| Cross-examination difficulties | Unable to effectively challenge attorney's evidence |
| Costs liability                | If unsuccessful, may have to pay attorney's costs   |
| Emotional burden               | Litigation is stressful and personal                |

### Urgent Situations

If there is an **immediate risk** to the donor's safety or property:

1. **Call 111** if in immediate danger
2. **Elder Abuse Response Service** — 0800 32 668 65 (24/7)
3. **Contact a lawyer urgently** — they can file a s. 103 application
4. **Contact the bank** — inform them of suspected abuse (banks have vulnerable customer policies)
5. **Move the donor** to a safe location if at risk

---

## 10. Key Contacts and Resources

| Organisation                           | Service                                 | Contact                  |
| -------------------------------------- | --------------------------------------- | ------------------------ |
| **Elder Abuse Response Service**       | 24/7 helpline, advice, support          | 0800 32 668 65           |
| **Age Concern NZ**                     | Elder abuse support services            | 0800 652 105             |
| **Community Law Centres**              | Free legal advice                       | communitylaw.org.nz      |
| **Public Trust**                       | EPA, welfare guardian, property manager | 0800 371 471             |
| **Family Court**                       | PPPR Act applications                   | justice.govt.nz/family   |
| **NZ Law Society**                     | Find a lawyer (elder law specialist)    | lawsociety.org.nz        |
| **Office for Seniors**                 | EPA forms and guidance                  | officeforseniors.govt.nz |
| **Health and Disability Commissioner** | Care complaints                         | hdc.org.nz               |
| **NZ Police**                          | Criminal complaints (fraud, theft)      | 105 (non-urgent)         |
| **Banking Ombudsman**                  | Banking complaint                       | bankomb.org.nz           |

---

## Cross-References

| File                                                                              | Relevance               |
| --------------------------------------------------------------------------------- | ----------------------- |
| `2026 Legal Pathway Brief - PPPR Act EPA Disputes and Capacity.md`                | Full PPPR Act framework |
| `2026 Legal Tracker - EPA PPPR Capacity and Elder Abuse Case Law.md`              | Key case law            |
| `2026 Legal Planning Topic Map - EPAs Capacity Wills and Protection.md`           | Practical EPA guidance  |
| `2026 Party Position Matrix - Elder Abuse and Consumer Protection.md` (Folder 16) | Political context       |
| `08 Elder Abuse and Advocacy` (Folder 08)                                         | Elder abuse services    |

---

_Part of the NZ Seniors Knowledge Base — Legal and Financial Planning layer_
_Last updated: June 2026_