ADLS’ new Enduring Power of Attorney forms
Amendments to the Protection of Personal and Property Rights Act 1988 came into force 16 March 2017.
From that date, all Enduring Powers of Attorney forms (EPAs) are required to be completed using the new prescribed format which is in a more plain language style. However, any EPAs executed prior to that date are still valid.
The Ministry of Social Development has made available free versions of the EPA forms on its website. ADLS was pleased to release updated EPA forms in the new prescribed format on Monday 27 March 2017. These forms are referenced as 4992WFP Enduring Power of Attorney (Property) and 4993WFP Enduring Power of Attorney (Personal Care & Welfare). The forms are available on ADLS WebForms or can be purchased as hard copy forms from the ADLS Bookstore. There is a nominal charge of $7.76 per form for ADLS members and $13.80 for non-members.
ADLS has received considerable positive feedback for its version of the form, with one ADLS member providing the ultimate compliment that they “like the form so much better they are happy to pay for it”.
There are a number of differences between the Ministry forms and the ADLS forms. The first difference that will be noticed is that ADLS EPA forms have been converted into ADLS style and are designed for lawyers (and legal executives) to complete. The Ministry’s forms are more geared for clients wanting to complete the forms themselves and then take to a lawyer, registered legal executive or representative from a trustee corporation to be witnessed.
ADLS has put all the documents that a lawyer needs to complete and provide to the donor and attorney(s) for a given EPA into one comprehensive form. We have made minor changes to some wording and punctuation, as well as changed the order in which some of the documents appear to improve the functionality of the documents for practitioners.
In the EPA in relation to property, ADLS has made provision for the appointment of more than one successor attorney and joint successor attorneys, unlike the Ministry’s forms.
ADLS has also renumbered and reformatted the “3. Exceptions and Independence paragraphs of the Certificate of witness to donor’s signature on enduring power of attorney”, as in our view the numbering in the prescribed format was somewhat confusing.
The ADLS forms on WebForms employ the strike-through function rather than the tick box that the Ministry’s forms employ. Many practitioners have made comment that the strike-through is preferable.
The Committee would like to record its concern that the Ministry forms available online are not in a “locked” format. Thus, anyone downloading the forms is able to omit provisions from these forms, which can allow for abuse by persons who prepare the forms themselves for a parent or relative who may be vulnerable, and then take the forms to be witnessed. It will be difficult for lawyers to ascertain when provisions have been omitted and ADLS cautions them to scrutinise these forms carefully or insist upon the use of a form prepared by themselves rather than those prepared by the client or someone close to them.
One negative comment that ADLS has received is that the forms are too long – unfortunately we do not have any control over that as the provisions in the forms are prescribed and none can be omitted. However in an attempt to conserve some paper, ADLS has merged the glossaries so that there is not a separate Glossary of Terms in each of the “Notes to enduring power of attorney and the Standard Explanation of effects and implications of an enduring power of attorney” (unlike the Ministry EPA forms which include both glossaries).
Regarding the differences between the forms, ADLS explicitly notes that they have been prepared with some departures from the exact format prescribed under the Act. However, ADLS is of the view that these departures fall within the scope of the exceptions stated in section 95(2) of the Act, that no prescribed provision is substantially omitted and the differences are immaterial. As with all standard forms, it is the user’s responsibility to assess the compliance of the forms with the Act.
Please be aware that there are a number of related forms which will be of use to practitioners in conjunction with the EPA forms (these are also referenced in the ADLS EPA’s Glossary of Terms):
- 4994WFP Health Practitioner’s Certificate (Property)
- 4995WFP Health Practitioner’s Certificate (Personal Care & Welfare)
- 4996WFP Notice of Suspension 4997WFP Certificate of Non-revocation
- 4998WFP Notice of Revocation
The ADLS Documents & Precedents Committee welcomes practitioners’ feedback on ADLS’ EPA forms. If there are improvements to be made, or additional forms you would like to see in our offering, we would very much like to hear from you. Please forward your comments to the Committee Secretary at firstname.lastname@example.org.
For further information, please see the recent ADLS CPD webinar entitled “Enduring Powers of Attorney: Changes and Expectations”, available On Demand. Presenters Mary Joy Simpson (Partner, Hesketh Henry) and Israel Vaealiki (Partner, Jackson Russell) examine recent legislative changes and the implications of case law, and provide tips on drafting effective EPAs and insights into the briefing of both the donor and attorney on expectations and behaviour.