When a Family Member Loses Capacity: Your Legal Options
If someone you love has lost capacity without an EPA, you need court authority to help them. Here's what's involved and how we can help.
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Trusts, Wills & Estates
Two documents. Two types of protection.
What happens when you can't decide for yourself? An EPA ensures the right person has authority to help.
Understanding EPAs
Two documents covering different decisions.
An Enduring Power of Attorney lets you appoint someone you trust to make decisions if you lose capacity. The key word is "enduring" - it continues working precisely when you need it most.
Property
Property EPA
Covers your financial and property matters. Your attorney can manage bank accounts, pay bills, handle investments, and deal with property transactions.
Covers
- - Bank accounts
- - Property transactions
- - Bill payments
- - Business interests
Your choices
- - Immediate OR incapacity
- - One or multiple attorneys
- - Successor attorneys
Personal
Personal Care & Welfare EPA
Covers your care and welfare decisions. Your attorney can make decisions about medical treatment, living arrangements, and daily care needs.
Covers
- - Medical treatment
- - Living arrangements
- - Daily care needs
- - Rest home choices
Key differences
- - Only on incapacity
- - One attorney at a time
- - Must consult you
Why you need both
If you only have a Property EPA, nobody has authority to make care decisions. If you only have a Personal Care EPA, nobody can manage your finances. Each covers a completely different sphere of your life.
The Critical Decision
Choosing who to trust with everything.
Choosing who to appoint is often the hardest part. Here's what to consider.
Trust
Non-negotiable
Someone you trust completely with significant decisions. They must be willing to respect your wishes even under family pressure.
Capability
Practical skills
Can they handle financial decisions competently? Do they understand your values and preferences? Are they organised?
Availability
Geographic & Time
Do they live close enough to manage your affairs? Do they have time to take on this responsibility when needed?
Different Attorneys
Common approach
You can appoint different people for each EPA. Many choose a financially-skilled child for Property, and someone closer for Personal Care.
Multiple Children
The fairness question
Worried about choosing? Consider: joint appointments (must agree), consultation requirements, or different types for each.
Successor Attorneys
Backup plan
Name a backup in case your first choice can't act when needed. Circumstances change - people move, relationships shift, health declines.
When EPAs take effect
Setting up an EPA is not giving up control. Until it's needed, you remain in full control of your own affairs.
Property EPA
You choose: takes effect immediately (useful for convenience) OR only when you lose capacity. Either way, you remain in control while capable.
Immediate
or
On Incapacity
Personal Care EPA
Always on incapacity only. Your attorney cannot make personal care decisions while you are capable of making them yourself. They must consult you when possible.
Incapacity OnlyWhat is "incapacity"?
Incapacity means you lack the ability to understand the nature and consequences of decisions, or to communicate those decisions. It's usually assessed by a medical professional. Incapacity can be temporary (illness, accident) or progressive (dementia).
The Alternative
What happens without EPAs
Without EPAs in place, your family cannot automatically manage your affairs. Even your spouse has no legal authority.
01
Banks Refuse
Banks will not accept family instructions without legal authority. Bills go unpaid. Accounts frozen. Direct debits fail.
02
Property Stuck
Cannot sell or refinance property. Cannot access investments. Business decisions impossible without court order.
03
Court Process
Formal application. Capacity assessment. Weeks or months of waiting. Orders need renewal every 3-5 years. Significant cost.
This happens while your family is already dealing with your health situation.
Avoid the court process →
How We Help
Explain Your Options
Understanding
We walk you through both types of EPA, the decisions you need to make, and what each choice means in practice.
Help Choose Attorneys
Guidance
We discuss the considerations for attorney selection and help you think through any family dynamics.
Prepare Correctly
Execution
EPAs have strict witnessing and execution requirements. Done incorrectly, they may not be valid when needed. We ensure everything is right.
Store Securely
Safekeeping
We keep your EPAs safe and accessible. When your attorneys need them, they know where to find them.
Support Your Attorneys
Ongoing
We can meet with your attorneys to explain their responsibilities, either when you sign or later when they need to act.
Often done with wills
Many clients prepare EPAs alongside their will. If you are thinking about what happens when you are gone, you should also think about what happens if you lose capacity. We handle both together.
Client Observations
What Our Clients Say
"Great prompt service. Informative information relayed in explaining EPOA."
To ensure candour, all feedback was collected anonymously.
Resources
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Related Reading
Choosing Your Attorneys: A Guide for New Zealanders
The most important EPA decision is who you appoint. Here's how to think through your options for both property and personal care attorneys.
Read articleWhat happens if you lose capacity without an EPA
Without an EPA, your family must apply to court for authority to manage your affairs. This is expensive, slow, and intrusive.
Read article
Your Estates Team
Practical, honest advice
from senior experts
Common Questions About EPAs
Yes. As long as you still have mental capacity, you can change or revoke your EPA at any time. You simply create a new EPA (which revokes the old one) or sign a formal revocation document.
If you have already given your EPA to your attorney or registered it anywhere, you should inform them of the revocation.
Your attorney is legally required to act in your best interests, not according to what family members want. If your attorney has proper authority under the EPA, their decisions stand.
If family members believe the attorney is not acting in your best interests, they can apply to the court for review. This is why choosing the right attorney initially is so important.
Unless your EPA specifies otherwise, attorneys are generally entitled to reimbursement for reasonable expenses but not payment for their time. However, you can include a provision in your EPA allowing reasonable remuneration.
If you appoint a professional (such as a lawyer or accountant), payment is usually expected and should be addressed in the EPA.
If you still have capacity and are unhappy with your attorney, you can revoke the EPA immediately. If you lack capacity, a family member or other interested person can apply to the court to review the attorney's actions.
Attorneys have legal duties to act honestly and in good faith. The court takes misuse of EPA powers seriously.
Yes. Many people appoint the same person as attorney for both their Property EPA and their Personal Care and Welfare EPA. This can simplify coordination and decision-making.
However, some people prefer different people for each role, choosing someone with financial skills for property matters and someone closer personally for care decisions.
Now. The time to set up an EPA is while you have full capacity to make one. If you wait until there is a health crisis, it may be too late. Many people set up EPAs in their 50s or 60s, often alongside their will.
Remember, the EPA sits there doing nothing until it is needed. There is no downside to having one in place early.
An EPA automatically ends when you die. Your attorney has no authority after your death. At that point, your executor (named in your will) takes over the management of your affairs.
This is why EPAs and wills work together. The EPA covers incapacity during your lifetime; the will covers what happens after death.
Choosing Your EPAs
Choose the right people to act on your behalf if you lose capacity.
Read the Guide