Issues for Seniors
- Enduring Power of Attorney
- Protection of Personal or Property Rights
- Retirement Villages Act
- Grandparents as Parents
Enduring Power of Attorney (EPA)
An EPA is legal document which sets out who (the “Attorney”) can take care of a client’s (the “Donor”) personal and financial matters if you cannot. Documents can only be created when the Donor has legal capacity – in other words the client has to fully understand the implications of an EPA and be competent to make the decision. The lawyer who arranges the EPA must certify that the Donor has received legal advice about what it is they are signing.
- There are two types of EPA:
- Personal care and welfare (only one Attorney may be appointed)
- EPAs take effect in relation to…
- Personal Care – when the donor loses capacity
Who is to be appointed as an Attorney is a very important consideration, as this person could hold significant powers in deciding outcomes for the Donor. However the Attorney’s decisions can be reviewed and/or powers revoked in the Family Court. Legal aid is not available to cover this type of matter.
Protection of Personal and Property Rights Act (PPPR)
Orders can be sought on behalf of people who are mentally impaired or have lost legal capacity. In this instance a person may seek an Order to be appointed as a Welfare Guardian, which grants similar powers as EPA for Personal Care and Welfare. An individual may also seek an Order to be appointed as a Property Manager/Administrator, granting similar powers as EPA for Property. Sometimes an organisation (such as a District Health Board) will apply to appoint a professional person (such as a social worker) as a Welfare Guardian or Property Manager. Note that there can be competing claims to be appointed under the Act and this can lead to a protracted hearing to decide the matter.
The subject person is appointed a Lawyer by the Court (Counsel for Subject Person), which is paid for by the Court.
Legal aid is available to make these applications, however the financial assessment uses the applicant’s resources, not subject person’s, however the subject person’s resources are means-tested if Orders or EPAs are already in place.
Retirement Villages Act
The purpose of this Act is to protect the interests of residents of retirement villages. In particular the Act deals with Occupation Right Agreements which are often required when moving to a village.
Legal aid is not available to cover this type of matter.
Grandparents as Parents
We are seeing an increase in grandparents taking on the active role of providing the day to day care for their grandchildren: loving them, nurturing them and instilling moral values. There are now an estimated 6,000 fulltime grandparent and whanau carers in New Zealand. (source: Grandparents Raising Grandchildren)
Families will often come to their own arrangements, particularly if there are concerns for the parenting of grandchildren: an informal arrangement that the grandchildren will live with the grandparents is common. However, issues can arise in a number of situations. Examples include if the child is ill and requires medical procedures, when the child starts school and needs to be enrolled, obtaining a passport, etc. All of these situations require the parent(s) or guardian(s) consent. It is therefore important for a grandparent who holds the parenting role for a grandchild to obtain an Order for Additional Guardianship through the Family Court. Such an Order enables the grandparent to make those important decisions - in consultation with the parents and other guardians - and receive necessary information about the grandchild.
It might also be necessary to obtain a Parenting Order, setting out who is responsible for the grandchild’s day to day care and who is to have contact with the grandchild and prove who has the full time care of the grandchild in order to be eligible for financial support.
There are a number of agencies and organisations available to assist you if you are raising your grandchildren. Grandparents Raising Grandchildren is a charitable trust established to support grandparents raising grandchildren, and have an excellent website at www.grg.org.nz or you can phone them on 0800 472 637 ext. 1.
For all your legal requirements or advice we are happy to assist. Your legal fees for care of children or CYF matters might even be met through the legal aid service.