Your right to care for your partner or spouse when they lose capacity – the Importance of Enduring Powers of Attorney

What many couples are surprised to discover is that you do not automatically have the right to make decisions about your spouse or partner’s property (and other financial matters), and personal care and welfare matters (e.g. decisions about medical procedures or rest home care), simply because you are married or in a de facto relationship.

Recently when a woman’s husband suffered a stroke life changed dramatically for them.  The couple did have Enduring Powers of Attorney in place, but they had appointed their son as Attorney, and he was now living overseas and had become estranged from them. 

Unfortunately, because their son was unwilling to act as Attorney, and because they had not appointed a Successor (“back-up”) Attorney, the wife had to take proceedings through the Court to be able to access the funds needed to assist her husband.  

She applied to the Court to have her husband’s EPOA revoked, and to be appointed her husband’s Property Manager and Welfare Guardian, which was a time-consuming and expensive process. 

Enduring Powers of Attorney as to Property

It is very important to put an EPOA in relation to Property matters in place while you have the capacity to do so, and that you continue to monitor whether the person you appoint as your Attorney is still suitable. 

This Power gives your Attorney authority to act on your behalf in matters regarding your house, finances and other property assets, in the event that you lose mental capacity. 

Consideration needs to be given to appointing a second and even third Attorney and/or Successor Attorneys, so that you are still protected in the event that one Attorney is unwilling or unable to act for you.

Enduring Powers of Attorney as to Personal Care and Welfare

It is equally important to put in place an EPOA in relation to your Personal Care and Welfare before you lose capacity. 

This Power covers any medical and personal matters, such as decisions as to whether the person should go into a rest home.  This document can only be used in the event that you do lose capacity, but if it is not in place at the time it is required, your loved ones will have to apply to the Court to appoint a Welfare Guardian. 

If you would like to put EPOAs in place, or are considering updating your existing EPOAs, see your legal advisor for advice on properly recording your requirements for your own situation.  These highly important documents protect both you and your loved ones, and are relatively inexpensive to put in place.



Thérèse Greenlees
Registered Legal Executive
Wellington