Protection of Personal and Property Rights Act 1988

94A Creation of enduring power of attorney

(1)

This section applies only to a power of attorney executed after the commencement of section 7 of the Protection of Personal and Property Rights Amendment Act 2007.

(2)

The instrument creating an enduring power of attorney—

(a)

must be in the prescribed form; and

(b)

must have attached to it the certificate referred to in subsection (7).

(3)

The instrument must be signed—

(a)

by the donor, or by some other person in the presence of the donor and by the direction of the donor; and

(b)

by the attorney (or if more than 1, by each attorney).

(4)

The signature of the donor must be witnessed by a person who, subject to subsection (8), is independent of the attorney (or of each attorney) and who is—

(a)

a lawyer; or

(b)

an officer or employee of a trustee corporation authorised by the corporation for the purposes of this subsection; or

(c)

a legal executive who meets the requirements of subsection (9).

(4A)

If 2 people appoint each other as attorney, the witness to the signature of one person as donor (witness A) does not fail to be independent for the purposes of subsection (4) by reason only that the witness to the signature of the other person as donor—

(a)

is a lawyer or legal executive in the same firm, or an officer or employee of the same trustee corporation, as witness A; or

(b)

is the same person as witness A, if, having regard to the matters listed in subsection (7)(a) to (b), the witness is satisfied that witnessing both signatures does not constitute more than a negligible risk of a conflict of interest.

(5)

The signature of an attorney must be witnessed by a person other than the donor or the donor’s witness.

(6)

Before the donor signs the instrument, the witness to the donor’s signature must explain the effects and implications of the enduring power of attorney to the donor, and advise the donor of—

(a)

the matters referred to in the notes to the prescribed form of power of attorney:

(b)

the donor’s right to suspend or revoke the power of attorney:

(c)

in the case of a power of attorney in relation to property,—

(i)

the donor’s right to appoint more than 1 attorney, or a trustee corporation, as attorney; and

(ii)

the donor’s right to stipulate whether and, if so, how the attorney’s dealings with the donor’s property are to be monitored.

(6A)

If regulations made under section 112(bab) prescribe a form of standard explanation for any of the matters required to be explained to a donor under subsection (6), the witness to the donor’s signature may give the explanation by—

(a)

giving a copy of the form to the donor; and

(b)

following any instructions in the form for giving a verbal explanation to the donor; and

(c)

if the form and the instructions do not cover all of the matters in subsection (6), using other appropriate means to fulfil all of the requirements of that subsection.

(7)

The witness to the donor’s signature must certify on the prescribed form for the certificate referred to in subsection (2)(b) that—

(a)

the requirements of subsection (6) have been met; and

(ab)

in the case of an enduring power of attorney signed by the donor after the commencement of this paragraph, the witness believes on reasonable grounds that the donor—

(i)

understands the nature of the instrument; and

(ii)

understands the potential risks and consequences of the instrument; and

(iii)

is not acting under undue pressure or duress; and

(b)

the witness has no reason to suspect that the donor was or may have been mentally incapable at the time the donor signed the instrument; and

(c)

the witness is independent of the attorney (or of each attorney) or that subsection (8)(a) or (b) applies or, if subsection (4A)(b) applies, the witness is satisfied that no more than a negligible risk of a conflict of interest arises.

(8)

Despite subsection (4),—

(a)

if the attorney is a trustee corporation, an officer or employee of that corporation authorised by the corporation for the purposes of this subsection may witness the donor’s signature:

(b)

if the attorney is appointed in his or her capacity as a lawyer, another lawyer in the attorney’s firm or a legal executive in that firm who meets the requirements of subsection (9) may witness the donor’s signature.

(9)

A legal executive who witnesses the donor’s signature—

(a)

must be a member of the body that, immediately before the commencement of section 7 of the Protection of Personal and Property Rights Amendment Act 2007, was known as the New Zealand Institute of Legal Executives Inc; and

(b)

must hold a current annual registration certificate issued by that body; and

(c)

must have at least 12 months’ experience as a legal executive; and

(d)

must be employed by, and under the direct supervision of, a lawyer.

Section 94A: inserted, on 25 September 2008, by section 7 of the Protection of Personal and Property Rights Amendment Act 2007 (2007 No 90).

Section 94A(4A): replaced on 16 March 2017, by section 77(1) of the Statutes Amendment Act 2016 (2016 No 104).

Section 94A(6A): inserted, on 16 March 2017, by section 77(2) of the Statutes Amendment Act 2016 (2016 No 104).

Section 94A(7): amended, on 16 March 2017, by section 77(3) of the Statutes Amendment Act 2016 (2016 No 104).

Section 94A(7)(ab): inserted, on 16 March 2017, by section 77(4) of the Statutes Amendment Act 2016 (2016 No 104).

Section 94A(7)(c): amended, on 16 March 2017, by section 77(5) of the Statutes Amendment Act 2016 (2016 No 104).