LawTalk 860 · 13 March 2015
have a purpose in their retired lives that does not relate to being paid but in the satisfaction that comes from being occupied and helping others. It seems to me that these two exemplify the fact that “selflessness” gives them that sense of self-worth that makes their lives meaningful and fulfilled. I enjoy Emily’s articles, and this one was timely for me. Mark Von Dadelzsen Hastings
EPOAs I have recently read your article “Enduring power of attorney” by Sarah Clark in LawTalk 857 (30 January 2015) with reference to reviewing the legislation, in particular about the witnessing requirements where there are mutual appointments. I am a practitioner who has had many dozens of powers of attorney signed over the years. It would not only be simpler but it would also be cheaper to simplify the rules. The sometimes exorbitant legal costs of having powers of attorney independently witnessed of course has the counter-productive result of discouraging people from signing these things in the first place. Apart from the mutual appointment of husband and wife or de facto partners, very frequently parents sign powers of attorney in favour of their children. This can occur if children, who are generally by then middle aged, come to see us with the genuine intention of helping their parents who are frequently in their 80s and upwards. Conversely a lot of people who consider they are getting too old to be attorneys for their spouse or partner initiate the instructions to have their children appointed. More frequently than not general practitioners like me have had long-standing relationships with two or three generations of the one family and are in the best position to judge whether or not the donor is being protected or likely to be defrauded. Incidentally, I have hardly ever seen a parent defrauded by a family member as opposed to the occasional situation where “hired help” contrive to get the confidence of elderly people and become their attorneys.
30
As a matter of practicality in a smaller town like Levin where I practise it is occasionally impossible, for example because of urgency, to follow the independent witnessing rules. I suspect the rules are frequently ignored. It has been a matter of considerable frustration for the last number of years to the practitioners who actually prepare these documents and deal face-to-face with their clients that whoever amended the legislation did not consider the practicalities. In effect, both our professional judgement and our obligation to our clients have been bypassed. Errol Macdonald Levin
District Court rules A er three weeks’ holiday, I returned to the office refreshed, revitalised and ready to go. Unfortunately the first piece of mail I opened was a letter from the new Central Processing unit, who process most civil Court proceedings in New Zealand. I was advised that an application for judgment I had filed prior to Christmas would not be accepted for filing because the documents I had drafted did not have headings which complied with the new District Courts Rules. After reading the rules and communicating with the Central Processing Unit, I was advised that no civil proceedings filed in any Court in New Zealand were being accepted for filing unless the heading (or the intituling) is included not only on the coversheet, but also on the top of the following page of each document. Always willing to accept I am wrong, I checked the District Court rules for a rule that stated such unnecessary repetition of the intituing was necessary. I found no such rule other than that related specifically to Harassment Act proceedings, of which mine was not one. It is clear from the rules that all proceedings require the proper intituling, but nowhere is it stated in the rules that the intituling required on the cover page also needs to be repeated on the following page. I therefore requested from the Central
Processing Unit the purpose of requiring such repetition, just in case there was some reason why the repeated intituling was necessary to make the Court system more efficient and productive. I received no substantive response. I am therefore left with the option of either redrafting all my documents to repeat the intituling on both the cover page and on the first page of the document, (including having to get an affidavit of service from an out of town agent re-sworn in order to comply) or filing an application and paying a $250 fee to have the registrar’s decision reviewed. While I am tempted to take the second course of action, I am a sole practitioner with neither the time nor money to commit to this unnecessary task. I therefore request that someone with more time and money than me, does challenge this absurd rule, or alternatively that someone with some clout in the Ministry puts a stop to this bureaucratic nonsense without us having to trouble a judge to make the obvious decision that documents do not require this unnecessary repetition of the intituling, in order to be acceptable for filing in the Court. Ben Nevell Dunedin Note: The New Zealand Law Society’s Civil Litigation and Tribunals Committee is aware of the issue raised in this letter and has referred the matter to the Rules Committee for clarification.
Complaints against lawyers According to NZLS President Mr Chris Moore (LawTalk 856, December 2014) the legal complaints system needs to be “… consumer focused and act reasonably and fairly towards consumers”. In the same breath he acknowledges lawyers concerns that making a complaint is too easy. It seems to me the requirement to be fair and reasonable should also be applied toward lawyers confronted with complaints. While the complaints process need not be overly bureaucratic or complex, the current lack of any objective requirements for a complainant to achieve, such as some connection to the lawyer