Age Concern Wellington has recently come to an agreement with Mahony Horner Lawyers to offer discounted services to our members. To help our clients understand some of the frequently-used legal terms, Siri Nicholas from Mahony Horner Lawyers has written a few lines for us.
To benefit from discounted legal services, please become a member of Age Concern Wellington by filling-in the member form here, and calling our office for a referral: 04 499 6646
Enduring Powers of Attorney
An Enduring Power of Attorney (EPA) gives a person’s nominated attorney the authority to act on their behalf in respect of certain transactions and decisions if the person executing the EPA (the donor) becomes mentally incapable.
EPA in relation to Property
The EPA in relation to property gives the attorney the right to manage your financial affairs and deal with your property. So this includes land and houses as well as bank accounts, shares, investments and personal possessions – basically everything you own in your own name.
You can choose the property EPA to take effect only if you lose capacity or alternatively to take immediate effect and to continue to take effect if you lose capacity. If you choose the former then your attorney cannot act unless a health professional prescribed by statute certifies that you are mentally incapable.
For the EPA in relation to property you can appoint more than one attorney to act jointly or severally. If they are appointed to act jointly they must act together. If you appoint them to act severally then they can act together or independently of the other.
You can also appoint a successor attorney to take on the role should the primary attorney be unwilling or unable to act.
EPA in relation to Personal Care and Welfare
An EPA in relation to personal care and welfare, as the name suggests enables your attorney to make legal decisions about your personal care in the event of your mental incapacity.
For instance your attorney can decide if you need to go into care, what home or hospital you will go to and what medical treatment you should have and so on.
Unlike the property EPA, the personal care and welfare EPA by definition can only be triggered upon the donor losing capacity. Again, this needs to be certified by a medical practitioner who is authorised to make that assessment.
A Will allows you to set out how your property is to be dealt with after you die.
Dying without a will leaves your assets to be dealt with under the Administration Act and the prescribed process does not provide for the level of flexibility that most people want.
The first thing to consider is who the executors will be. Your executors will administer your estate, arrange for funeral expenses to be paid and will apply for probate if required. They will then see to the distribution of your estate and make sure all debts and accounts have been paid. Most often people appoint a spouse or partner and their solicitor. The solicitor will attend to the documentation and administration of the estate.
Another consideration is whether you wish to be buried or cremated.
Personal Possessions and cash legacies
Your will should also stipulate to whom and how you would like your personal possessions distributed together with any cash legacies and any charitable gifts.
Your Will can also deal with your ‘digital assets’ – your social media accounts, email addresses and passwords and the treatment of these digital assets upon death.
Once those matters are dealt with then you need to provide for your residuary estate – assets held in your personal name.
It is therefore really important that you seek good legal advice when preparing a will to make sure it covers all of your testamentary directions and takes your specific circumstances into account.