United Kingdom Legal Documents


Power of Attorney

This range of UK power of attorney documents allow you to delegate authority to someone else to act on your behalf in various situations.

6

How to give a power of attorney

What is a power of attorney?

A power of attorney is an authority that you give someone to handle your affairs.

The attorney has a duty to act in your best interests and take prudent care in managing your business affairs.

There are two types of power of attorney:

  • an ordinary power of attorney
  • an enduring power of attorney

Ordinary power of attorney

An ordinary power of attorney is valid only if you, the person giving the authority, have the capacity to deal with the matters yourself. The power therefore ceases if you become mentally incapable.

This kind of power will commonly be given if, for example, you are planning a trip overseas.

Enduring power of attorney

By contrast, an enduring power of attorney continues to be valid even if you become mentally incapable. Therefore if you lose capacity, the attorney can still manage your affairs.

An enduring power will usually be given when people are concerned about who will look after their affairs if they become unable to do so.

The ability to grant an enduring power of attorney arises under the PROTECTION OF PERSONAL AND PROPERTY RIGHTS ACT 1988.

Types of enduring power of attorney

There are two different types of enduring power of attorney:

  • a power that covers your property – In this case, you can choose when the power can be used: either before you become mentally incapable, or after, or both.
  • a power that covers your personal care and welfare – This can only come into effect after you have become mentally incapable, since before then you are able to make your own decisions about these things.

How do I appoint an enduring power of attorney?

There are some formal requirements for creating an enduring power of attorney that you will need to comply with in order for the authority to be valid.

Standard forms are set out in the Third Schedule of the PROTECTION OF PERSONAL AND PROPERTY RIGHTS ACT 1988 (there is one form for an enduring power of attorney for property, and another for personal care and welfare). You can obtain copies of the forms from the Public Trust Office or another trustee company. The Family Court also provides copies of the forms; you can download them from their website at www.courts.govt.nz/family (under Forms).

The form must be signed by both you and the attorney (or attorneys) and then witnessed.

Who should I appoint as attorney?

Most people appoint a close friend, family member or lawyer as their attorney. It is generally preferable to appoint two or more people.

The person to whom an enduring power of attorney is given must be at least 20 years old, must not be a bankrupt, and must not be suffering from any legal incapacity.

How many people can I give an enduring power of attorney to?

You may appoint more than one property attorney, acting together or separately, at any one time. But you may have only one attorney to be responsible for your personal care and welfare if you become mentally incapable.

What exactly does "mentally incapable" mean?

In relation to property, you are "mentally incapable" if you are not wholly competent to manage your property affairs.

In relation to your personal care and welfare, you are "mentally incapable" if you:

  • lack, wholly or partly, the capacity to understand the nature and to foresee the consequences of decisions relating to your personal care and welfare, or
  • wholly lack the capacity to communicate decisions relating to your personal care and welfare, even if you are able to understand the nature and to foresee the consequences of those decisions

Can I cancel an enduring power of attorney?

You may cancel an enduring power of attorney at any time, as long as you are mentally capable of doing so. This should be done in writing, in a document that has been signed and witnessed in the same way that the original power of attorney was witnessed.

You can cancel an ordinary power of attorney at any time. If you become mentally incapable, the power necessarily ceases to have effect.

What if I become incapable and I haven't given a power of attorney?

If you have not given an enduring power of attorney and you become incapable of managing your affairs, the Act sets out a procedure for applying to the court for it to appoint a welfare guardian to deal with your personal care and welfare, or a property manager to deal with your property. (See How to obtain a personal or property order for somebody who lacks capacity.)

Cautionary notes

 

  • You have the right to be very specific in the powers that you wish to give the attorney; if the terms of the authority you give are too general the attorney may be able to do more tasks than you in fact wanted.
  • If you give an enduring power of attorney over property, you should be clear as to when the attorney is to begin to act for you: this can be either as soon as you have given the authority or at the time that you become mentally incapable. (By contrast, an attorney can begin to act in relation to your personal care and welfare only when you have become mentally incapable.)

How to obtain a personal or property order for someone who is mentally incapable

Introduction

If you are concerned that someone you know is no longer able to make decisions about his or her personal care or property interests, you may apply to the Family Court for a personal or property order under the PROTECTION OF PERSONAL AND PROPERTY RIGHTS ACT 1988. The people who commonly apply for an order are the person himself or herself, a relative, a social worker or a medical practitioner.

The court treats personal care and welfare issues separate from property matters. Accordingly, it may make two kinds of orders: personal orders and property orders.

The Act encourages the idea of self-reliance and the court has adopted a policy in which it imposes the less restrictive or interfering order.

In making a decision the court may request medical, psychiatric or psychological reports on the person concerned to be presented.

Who are able to have orders made for them?

People who are able to have orders made for them include people suffering from senility or dementia, the comatose, the mentally ill, the intellectually handicapped, and people affected by drug or alcohol dependency.

The Act's scheme does not apply to people who have already provided, through an enduring power of attorney, for someone to handle their affairs should they become mentally incapable (see How to give a power of attorney).

How is an application made?

The application must be filed at the Family Court. Copies of the application form are available from the Family Court.

There is no filing fee.

When can a personal order be made?

A personal order may be made if the person either:

  • lacks, partly or fully, the capacity to understand the nature of decisions about his or her own personal care and welfare, and the capacity to foresee the consequences of those decisions, or
  • has these capacities, but is completely unable to communicate decisions about his or her personal care and welfare

What kinds of personal orders can be made?

The court may grant a variety of personal orders, including:

  • that the person be provided with living arrangements of a specified kind
  • that the person be provided with medical advice or treatment
  • that the person be provided with specific educational, rehabilitative, therapeutic or other services
  • that a welfare guardian be appointed for the person, if he or she is totally unable to communicate decisions or understand decisions about his or her personal care and welfare (see Howto: welfare guardians)

Property orders

The court may make a property order appointing a manager for the person's property if the court believes that the person either:

  • lacks the capacity to understand the nature and foresee the consequences of his or her decisions relating to property, or
  • has this capacity but is unable to communicate his or her decisions

The powers and duties of the manager are conferred by the court and are not limited by the value of the property.

If the property involved is not large (that is, no single item is worth more than $2,000 or the income or benefit is less than $20,000 a year) the court can make a personal order appointing someone to administer the person's property, instead of making a full "property order".

Safeguards for the person who is the subject of the application

The Act contains a number of legal and procedural safeguards to ensure that the court intervenes only after proper processes have been followed:

  • The person subject to the application must have legal representation.
  • Anybody who may assist the court in the matter is given notice of the hearings.
  • A process of automatic reviews is set up.

Is there a right of appeal from the court's decision?

Yes. If the court makes or refuses to make the order, or otherwise makes a final decision about the application, any party to the proceedings or the person about whom the application was made may appeal the court's decision to the High Court.

You have 20 working days after the decision is made to bring your appeal.

Cautionary notes
  • While it is not necessary to obtain the services of a lawyer in order to apply for a personal or property order, it is highly advisable that you do so, as often applications are rejected because they do not contain all the necessary information.
  • If you wish to appeal the court's decision to the High Court, you will almost certainly need to hire a lawyer to do so.

How to apply for a person to be assessed for compulsory mental treatment

Introduction

If you believe that a friend or relative may need some form of professional assistance for a mental disorder or illness, you may apply for them to be assessed for compulsory mental treatment. The right to do this is set out in the MENTAL HEALTH (COMPULSORY ASSESSMENT AND TREATMENT) ACT 1992.

How do I apply?

The first stage in the process is to apply to the Director of Area Mental Health Services for an assessment of the person in question.

Your application must be in writing, and must include:

  • details of the relationship between you and the proposed patient
  • the grounds on which you believe him or her to be mentally disordered
  • a statement that you have seen the proposed patient within the three days immediately before the application
  • a medical certificate, which states that the certifying medical practitioner has examined the proposed patient (giving the date of the examination, which must have been in the three days before the application), and which states reasonable grounds for believing that the person may be mentally disordered

What is the procedure for the assessment of the proposed patient?

  • The Director of Area Mental Health Services arranges an assessment examination and notifies the patient.
  • After the assessment, a medical practitioner issues a certificate of preliminary assessment, stating whether or not, in his or her opinion, there are reasonable grounds for believing that the patient is mentally disordered. A copy of the certificate is sent to the Director of Area Mental Health Services.
  • If the assessment found no mental disorder, the patient is free to go. But if reasonable grounds do exist, the proceedings continue with assessment and treatment. There is a strict timetable for this assessment and treatment.
  • After a final assessment the clinician responsible for the patient will state whether or not he or she is fit to be released from compulsory status, in which case the patient is free to go. If however the responsible clinician believes the patient is not fit to be released, the clinician must apply to the court for a compulsory treatment order.
  • The court decides to grant the compulsory order after the judge examines the patient.

Are all these proceedings public?

No, all of the proceedings and hearings are confidential.

What type of orders compulsory treatment orders can be made?

The Act provides for two types of compulsory treatment order:

  • in-patient orders – where the person is detained in hospital for treatment, and
  • community treatment orders – where the person is required to remain at his or her home or other residence for treatment

What rights does the patient have?

The Act sets out various rights for the patient, including:

  • information about treatment
  • psychiatric advice
  • legal advice

There is a formal complaint procedure that will enforce any breaches of the patient's rights under the Act.

The patient's review and appeal rights

A patient also has various review and appeal rights under the Act, including

  • having his or her condition reviewed by a Review Tribunal
  • an appeal to the District Court from decisions of the Review Tribunal
  • an application to the High Court for it to order an inquiry into the patient's condition
Cautionary notes
  • An appeal to the District Court or an application to the High Court for a judicial inquiry will need the guidance of a lawyer.

How to: Caring for the elderly

Introduction

Growing old is one of life's certainties and may raise a number of important legal issues, particularly questions to do with the care of one's parents or parents-in-law.

Am I responsible for looking after my parents?

You have no legal responsibility to support your parents or parents-in-law. The only situation in which this may occur is where parents or parents-in-law have promised to leave you something in their will in return for supporting them in their old age. If this is the case then a contractual obligation may have arisen and can be enforced.

Specifically, you have no legal responsibility to pay your parents' medical bills.

What Government support is available to the elderly?

If an elderly person is over 65 he or she is eligible for New Zealand Superannuation. A person who has not yet reached 65 may possibly claim sickness or other benefits – contact Work and Income New Zealand (WINZ) to ask what they can or cannot claim.

The Government also provides a rest home subsidy (the Residential Care Subsidy), which is subject to asset- and income-testing: see How to apply for a rest home subsidy (Residential Care Subsidy).

Do I have any say about where my parents should live?

Elderly people can live anywhere they choose; their children do not have the power to stop them living in a particular place.

An elderly person cannot be forced to move into a rest-home against his or her wishes, unless the court makes a "personal order" under the PROTECTION OF PERSONAL AND PROPERTY RIGHTS ACT 1988 on the ground that he or she is mentally incapable of dealing with his or her own affairs (see "Personal and property orders" below).

Powers of attorney

Along with caring for one's elderly parents comes the responsibility of dealing with any business matters that may arise. It may be necessary for the elderly person in question to give you or some other person a power of attorney to deal with his or her affairs (see How to give a power of attorney). You may be given either:

  • an "ordinary power of attorney", which you can exercise only so long as the elderly person remains mentally capable, or
  • an "enduring power of attorney", which can still be exercised if the person in question becomes mentally incapable

Personal and property orders

If a parent or parent-in-law becomes mentally incapable but has not previously given anyone an enduring power of attorney to deal with his or her affairs (see above), you can apply to the court for it to make various orders to provide for the person's personal welfare and business affairs.

The orders that may be made include appointing a manager for the person's property affairs, and appointing a welfare guardian to deal with the person's personal care and welfare (see How to obtain a personal or property order for someone who is mentally incapable and How to be a welfare guardian).

Cautionary notes
  • If you are unsure about your legal rights and responsibilities in caring for your elderly relatives, you should seek legal advice.

NZ$10.80

Use this general power of attorney to delegate authority to someone else to act on your behalf, usually for a short and specified period of time.

Document Delivery Format:Delivery format: Download MS Word file
Document Source:Complies with current English Law
Document User Guide Available:Comprehensive document Guide Notes
Document Assembly Method:User fills in template blanks
Document Preview/Sample Available:Incomplete sample available
Help Support Email/Telephone:Limited - not legal advice
Country:England, Wales or Scotland jurisdiction
State:n/a
MainSiteUrl:www.NetLawman.co.uk
NZ$10.80

Use this power of attorney document to delegate to your attorney, the task of selling your real property.

Document Delivery Format:Delivery format: Download MS Word file
Document Source:Complies with current English Law
Document User Guide Available:Comprehensive document Guide Notes
Document Assembly Method:User fills in template blanks
Document Preview/Sample Available:Incomplete sample available
Help Support Email/Telephone:Limited - not legal advice
Country:England, Wales or Scotland jurisdiction
State:n/a
MainSiteUrl:www.NetLawman.co.uk

United Kingdom
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United Kingdom
Fast & cost effective answers to your unique legal questions
Ask a Lawyer now




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