E N D U R I N G P O W E R S O F AT T O R N E Y · P R A C T I C E
F ebruary 2 0 1 7 · L AW TA L K 9 0 3
PRACTICE
Enduring Powers of Attorney changes go live on 16 March BY THERESA DONNELLY AND NEIL WILLIAMSON
The Statutes Amendment Bill containing amendments to the Protection of Personal and Property Rights Act 1988 (PPPR Act) passed its third reading on 14 December 2016 and has received Royal Assent. The amendments to the PPPR Act will come into force on 16 March. Amended regulations including new plain language forms of Enduring Power of Attorney (EPA) and a plain language explanation of the effects and implications of entering into an EPA will come into effect on the same date. This will be the ‘go-live’ date for the amendments and new forms. The drafting of the Protection of Personal and Property Rights (Enduring Powers of Attorney Forms and Prescribed Information) Amendment Regulations is being finalised and is due to go before Cabinet. On and after the go-live date, you will need to use the new EPA forms contained in the regulations. The old forms will no longer be effective as the prescribed forms of EPA. If clients have completed EPAs on the old forms but they have not been signed by the donor and attorney(s) before the go-live date, they will need to be re-done on the new forms.
Consultation NZLS CLE Ltd held a seminar “PPPR Act – changes ahead” in October 2016. The proposed (in draft) new forms were discussed, as were the implications for practitioners of the changes to the PPPR Act. There has been significant consultation in preparing the forms, including 32
feedback from attendees at the October presentations. The Ministry of Social Development has consulted with key stakeholders, including the property and family law sections of the New Zealand Law Society and some experienced lawyers, including Chris Kelly, Ala Sonti (formerly of the Public Trust), Nick Fagerlund from the Public Trust, and Elaine Henderson from Vicki Ammundsen Trust Law Ltd. Caroline Greaney from the Ministry of Justice was also consulted. There has been a tension between making the forms as simple and readable as possible while maintaining legal accuracy and clarity.
Changes made Changes to the PPPR Act can be summarised as follows: • Less restrictive requirements for mutual appointments: New section 94A(4A) allowing the same authorised witness for the respective donors where there is no more than a negligible risk of conflict of interest. • Standard Explanations: New s 94A(6A) providing that the donor’s witness may use the standard explanation prescribed by regulations to explain the effects and implications of the EPA. • Additional certification requirements for the donor’s witness: See the fuller discussion below. • Optional provisions revoking previous EPAs and provision for giving notice of this revocation: New s 95A allowing a provision in the EPA to revoke all previous
EPAs and for giving notice of this revocation, including after the donor loses capacity. • Duty of attorneys to consult: Section 99A(1) is amended to expand the duty. Consultation will be required with any other EPA attorney of the donor (but not with a successor attorney whose appointment has not taken effect). • Medical certificates of incapacity no longer in prescribed form: The medical certificate must still contain the prescribed information – as per the amended s 99D. • Revocation of appointment: Amended s 106 will allow the donor to revoke an attorney’s appointment without revoking the EPA if a successor attorney is appointed, and clarifies that an EPA appointing more than one attorney with several or joint-and-several authority will only cease to have effect when the last remaining attorney’s appointment is revoked by the donor under new s 106A or otherwise ceases to have effect.
Frequently asked questions I can’t find the amendments to the PPPR Act – where can I find them? They are set out in Part 23 of the Statutes Amendment Act 2016. They were not separated out into a Protection of Personal and Property Rights Amendment Act. They will be incorporated into the online version of the Protection of Personal and Property Rights Act 1988 on the go-live date. What happens to old EPAs after the go-live date of the new EPA forms – do they become ineffective? No. Previous EPAs that have been executed by the donor and by the attorneys will still