Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1698750458741.pdf (New Zealand)
2008/310 Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008 Rt Hon Dame Sian Elias, Administrator of the Government Order in Council At Wellington this 15th day of September 2008 Present: Her Excellency the Administrator of the Government in Council Pursuant to section 112 of the Protection of Personal and Property Rights Act 1988, Her Excellency the Administrator of the Govern­ ment, acting on the advice and with the consent of the Executive Council, makes the following regulations.
1 2 3 4 Title Commencement Interpretation Forms Contents Schedule Forms Page 2 2 2 2 3 1 Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008 2008/310 Regulations Title These regulations are the Protection of Personal and Prop­ erty Rights (Enduring Powers of Attorney Forms) Regulations 2008.

Commencement These regulations come into force on 26 September 2008.
Interpretation In these regulations, unless the context otherwise requires, Act means the Protection of Personal and Property Rights Act 1988.

Forms The forms set out in the Schedule are the forms that must be used in respect of the matters under the Act to which those forms relate.
r 1 1 2 3 4 2 2008/310 Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008 Schedule Forms Form 1 Enduring power of attorney in relation to property Section 94A(2), Protection of Personal and Property Rights Act 1988 Schedule r 4 Appointment of attorney 1 I, [full name, address, occupation of donor], appoint [full name, address, occupation of each attorney] to be my at­ torney/attorneys* in relation to my property affairs for the purposes of Part 9 of the Protection of Personal and Property Rights Act 1988.
*Select one.

Property affairs subject to enduring power of attorney For this paragraph select the statement that applies.

2 Statement A I authorise my attorney/attorneys* to act on my behalf in rela­ tion to all of my property affairs.

*Select one.

Statement B I authorise my attorney/attorneys* to act on my behalf only in relation to the following of my property affairs: [specify].

*Select one.

Extent of attorney’s authority 3 For this paragraph select the statement that applies.
Statement A I authorise my attorney/attorneys* to act on my behalf gener­ ally in respect of the property affairs referred to in paragraph 2.

*Select one.

3 Schedule Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008 2008/310 Form 1 —continued Statement B I authorise my attorney/attorneys* to act on my behalf in re­ spect of the property affairs referred to in paragraph 2 in the following ways only: [specify].

*Select one.
*Select one.

When enduring power of attorney takes effect 4 For this paragraph select the statement that applies.

Statement A I authorise my attorney/attorneys* to act while I am mentally capable and to continue to act if I become mentally incapable.

*Select one.

Statement B I authorise my attorney/attorneys* to act only if I become men­ tally incapable.

*Select one.

Optional provisions Omit any or all of paragraphs 5 to 12 if not required and renumber.
Conditions and restrictions on attorney’s power 5 The authority of my attorney/attorneys* is subject to the fol­ lowing conditions and restrictions: [specify].

*Select one.

Attorneys may have joint or several authority 6 If more than one attorney is appointed, for this paragraph se­ lect the statement that applies.

Statement A My attorneys have joint authority to act.

Statement B My attorneys have several authority to act.
4 2008/310 Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008 Schedule Form 1 —continued Appointment of successor attorney 7 For this paragraph select the statement that applies.
Statement A (if appointing one successor attorney to succeed sole attorney or an attorney having several authority) If the appointment of my attorney/any of my attorneys having several authority* ceases, I appoint [full name, address, occu­ pation of successor attorney] to act as my successor attorney in place of the attorney whose appointment has ceased and is succeeded.

*Select one.
*Select one.

Statement B (if appointing one successor attorney to succeed attorneys having joint authority) If the appointment of my joint attorneys ceases, I appoint [full name, address, occupation of successor attorney] to act as my successor attorney in place of my joint attorneys whose ap­ pointments have ceased and are succeeded.
Statement C (if appointing more than one successor attorney to succeed sole attorney or an attorney having several authority) If the appointment of my attorney/any of my attorneys having several authority* ceases, I appoint [full name, address, occu­ pation of each successor attorney] to act in succession as my successor attorneys, each of whom is to act in place of the last attorney whose appointment has ceased and is succeeded.

*Select one.
*Select one.

Statement D (if appointing more than one successor attorney to succeed attorneys having joint authority) If the appointment of my joint attorneys ceases, I appoint [full name, address, occupation of each successor attorney] to act in succession as my successor attorneys, each of whom is to act in place of my joint attorneys and the last attorney whose appointment has ceased and is succeeded.
Attorney to consult with others 8 When acting on my behalf in relation to my property affairs, my attorney/attorneys* must consult, as far as is practicable, 5 Schedule Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008 2008/310 Form 1 —continued with the following person/persons* in addition to myself in re­ lation to the matters speciﬁed: [full name, address, and occu­ pation of every person who must be consulted and, in respect of each person, specify that the person is to be consulted on all matters, or specify the kinds of matters or particular matters in respect of which the person is to be consulted].
*Select one.

Execution of will on behalf of donor 9 For this paragraph select the statement that applies.

Statement A I consent to my attorney/attorneys* executing a will for and on my behalf if I lack the capacity to make a will.

*Select one.

Statement B I do not consent to my attorney/any of my attorneys* executing a will for and on my behalf if I lack the capacity to make a will.

*Select one.

Attorney’s power to beneﬁt self and others 10 For this paragraph select the statement(s) that apply.
Statement A I authorise my attorney/attorneys* to do the following when acting on my behalf when I am mentally incapable: [select one or more of the following] • act to the beneﬁt of himself/herself/themselves* to the extent that [specify]: act to the beneﬁt of any person other than myself to the extent that [specify]: recover any expenses from my property to the extent that [specify].

• • *Select one.
6 2008/310 Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008 Schedule Form 1 —continued Statement B I do not authorise my attorney/any of my attorneys* to do the following when acting on my behalf when I am mentally in­ capable: [select one or more of the following] • take any action in respect of real or personal property that the attorney and I own jointly and not as tenants in common [include this only if the donor is married to, or in a civil union or de facto relationship with, the attorney and the donor and attorney are living together and sharing incomes]: make payments in respect of out­of­pocket expenses in­ curred by my attorney: make payments in respect of professional fees incurred by my attorney in any professional capacity: make a loan, advance, or other investment of my prop­ erty that a trustee could make of trust funds under sec­ tion 13A of the Trustee Act 1956.
• • • *Select one.
Attorney to provide information on exercise of powers 11 My attorney must provide the following person/persons* with the speciﬁed kinds of information relating to the exercise of the attorney’s powers under the enduring power of attorney if that person/those persons* should request it: [full name, address, and occupation of each person who is to be provided with information relating to the exercise of the attorney’s powers under the enduring power of attorney if the person requests it and specify the kind of information that is to be provided to each such person].
*Select one.

Assessment of mental capacity 12 Any assessment of my mental capacity for the purposes of Part 9 of the Protection of Personal and Property Rights Act 1988 is to be undertaken by [specify type of health practitioner and that health practitioner’s scope of practice, for example, 7 Schedule Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008 2008/310 Form 1 —continued a medical practioner registered with a general scope of prac­ tice].
Date: Signature of donor Signed by [name of donor] in the presence of: [full name of witness] [name of city, town, or locality where witness ordinarily resides] [occupation or description of witness] or Signed by [full name] in the presence of [full name of donor] and by the direction of [full name of donor] in the presence of: [full name of witness] [name of city, town, or locality where witness ordinarily resides] [occupation or description of witness] Signature of attorney *Signed by [name of attorney] in the presence of: [full name of witness] [name of city, town, or locality where witness ordinarily resides] [occupation or description of witness] *If one or more successor attorneys are appointed, add provision for signature by each successor attorney and by the witness to each successor attorney’s signature.
Notes The effect of the enduring power of attorney is to authorise the per­ son(s) you (the donor) have named as your attorney(s) to act on your behalf in relation to your property affairs.

8 2008/310 Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008 Schedule Form 1 —continued You can authorise your attorney to act on your behalf while you are mentally capable, and to continue to act if you become mentally inca­ pable.
Alternatively, you can authorise your attorney to act on your behalf only if you become mentally incapable.

Mentally incapable is deﬁned in section 94(1) of the Protection of Personal and Property Rights Act 1988 (the Act).

That section pro­ vides that a donor of an enduring power of attorney is mentally inca­ pable in relation to property if the donor is not wholly competent to manage his or her own affairs in relation to his or her property.
An assessment of mental capacity must take into account the pre­ sumption of competence in section 93B of the Act.

Every person is presumed, until the contrary is shown, to be competent to manage his or her own affairs in relation to his or her property.
A person must not be presumed to lack that competence just because— • the person manages, or intends to manage, his or her own af­ fairs in relation to his or her property in a way that a person exercising ordinary prudence would not do in the same cir­ cumstances; or the person is subject to compulsory treatment or has special patient status under the Mental Health (Compulsory Assess­ ment and Treatment) Act 1992.
• In these notes, the term attorney refers, if you have appointed more than one attorney, to all attorneys.

The following notes refer to the numbered paragraphs in the form.

1 Appointment of attorney You can appoint one or more attorneys.

You can appoint an individual or a trustee corporation as an attorney.

An individual appointed as an attorney must be at least 20 years of age, not bankrupt, and not subject to a personal order or a property order under the Act.
A trustee corporation is the Maori Trustee, the Public Trust, and any trustee company within the meaning of the Trustee Companies Act 1967.

9 Schedule Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008 2008/310 Form 1 —continued Property affairs subject to enduring power of attorney You can authorise your attorney to act on your behalf in rela­ tion to all of your property affairs, or only some of your prop­ erty affairs.
If you want your attorney to act only in relation to some of your property affairs, you must specify what those affairs are.

Extent of attorney’s authority You can authorise your attorney to act generally on your behalf in relation to your property affairs, or to act on your behalf in certain ways only.
Under section 97A(2) of the Act, your attorney’s paramount consideration when you are mentally incapable is to use your property in the promotion and protection of your best interests, while seeking at all times to encourage you to develop our own competence to manage your own affairs in relation to your property.

When enduring power of attorney takes effect You can authorise your attorney to act immediately, while you are mentally capable, and to continue to act if you become mentally incapable.
Alternatively, you can authorise your at­ torney to act under the enduring power of attorney only if you become mentally incapable.

Under this option your attor­ ney must not act in relation to your property unless a relevant health practitioner has certiﬁed, or the Family Court has deter­ mined, that you are mentally incapable.
A relevant health practitioner is a person— • who is, or is deemed to be, registered with a registration authority appointed by or under the Health Practitioners Competence Assurance Act 2003 as a practitioner of a particular health profession; and whose scope of practice enables him or her to assess a person’s mental capacity; and who is competent to undertake an assessment of that kind.
2 3 4 • • 10 2008/310 Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008 Schedule Form 1 —continued In the case of a certiﬁcate of mental incapacity issued outside New Zealand, a relevant health practitioner is a person regis­ tered as a medical practitioner by the competent authority of the country concerned and whose scope of practice includes the assessment of a person’s mental capacity.
A donor may specify in an enduring power of attorney that an assessment of his or her mental capacity be undertaken by a health practitioner with a speciﬁed scope of practice (for ex­ ample, a medical practitioner registered with a general scope of practice, or a nurse whose registered scope of practice is nurse practitioner).
Provided health practitioners who have that scope of practice are able to assess a person’s mental cap­ acity, then only a health practitioner with the scope of practice speciﬁed by the donor and who is competent to do so may as­ sess the donor’s mental capacity and complete the certiﬁcate.

Optional provisions 5 6 7 Conditions and restrictions on attorney’s power If you want to place conditions or restrictions on your attor­ ney’s authority, you must specify what those conditions or re­ strictions are.
Attorneys may have joint or several authority If you have appointed more than one attorney, you can specify that your attorneys must act jointly (they must make decisions and act together), or that they may act severally (each can act independently).

Note that if your attorneys have joint author­ ity and the appointment of one of them ceases, none will have authority to act.
Appointment of successor attorney You can appoint another individual or individuals or a trustee corporation to be your attorney in the event that your original attorney’s appointment ceases.
Section 106(1)(c) to (f) of the 11 Schedule Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008 2008/310 Form 1 —continued Act sets out the circumstances when an attorney’s appointment ceases, as follows: • the attorney gives notice of disclaimer in accordance with section 104 of the Act.
Disclaimer means that the attorney refuses to accept or continue the responsibility as your attorney; or the attorney dies, or is adjudged bankrupt, or becomes a patient within the meaning of the Mental Health (Com­ pulsory Assessment and Treatment) Act 1992 detained in a hospital under that Act, or becomes subject to a per­ sonal order or a property order under the Act, or other­ wise becomes incapable of acting; or if you have appointed attorneys with joint authority, one of them dies, or is adjudged bankrupt, or becomes a pa­ tient within the meaning of the Mental Health (Compul­ sory Assessment and Treatment) Act 1992 detained in a hospital under that Act, or becomes subject to a personal order or a property order under the Act, or otherwise be­ comes incapable of acting; or a Family Court revokes the appointment of the attorney pursuant to section 105 of the Act.
• • • Attorney to consult with others When acting on your behalf under the enduring power of attor­ ney, your attorney must, as far as is practicable, consult with you.

You may specify one or more persons with whom your attor­ ney must, as far as is practicable, also consult when making decisions under the enduring power of attorney.

In respect of each of these persons, you must state the matters related to your property affairs on which your attorney is re­ quired to consult with them.
You may wish your attorney to consult with these persons on all matters, or only in respect of certain kinds of matters or particular matters.
8 12 2008/310 Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008 Schedule 9 10 Form 1 —continued If you appoint a separate attorney in relation to your personal care and welfare, your attorneys must consult each other regu­ larly to ensure that your interests are not prejudiced through any breakdown in communication between them.

An attor­ ney’s duty to consult is set out in section 99A of the Act.
Execution of will on behalf of donor The Family Court can authorise your property attorney to exe­ cute a will for and on your behalf if you do not have the cap­ acity to make a will, unless you say otherwise in your enduring power of attorney.

If an application is made to the Court for this authority, the Court decides provisionally on the form of the will and hears from all interested parties before it makes a decision to authorise your attorney to execute it.
Attorney’s power to beneﬁt self and others You should consider very carefully whether you want to give your attorney(s) the right, when you are mentally incapable, to act to their own beneﬁt or to the beneﬁt of other persons.

Acting to the beneﬁt means that your attorney may use, or authorise someone else to use, your property or make loans or gifts from it.
If you do not expressly state otherwise in your enduring power of attorney, your attorney will be able to do any of the following things set out in section 107(1)(c) of the Act: • if you and the attorney are married or are in a civil union or a de facto relationship with each other and you live together and share your incomes, act in respect of real property (land and buildings) or personal property you own jointly and not as tenants in common: make payments for out­of­pocket expenses (but not for lost wages or remuneration) reasonably incurred by an attorney if the attorney produces receipts or other evi­ dence: pay professional fees and expenses reasonably incurred by an attorney who has accepted the appointment in a professional capacity (for example, a lawyer) or has • • 13 Schedule Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008 2008/310 11 12 Form 1 —continued • done work in a professional capacity to give effect to decisions taken under the enduring power of attorney: make a loan or advance or other investment of your property of the kind that a trustee could make of trust funds under section 13A of the Trustee Act 1956.
Attorney to provide information on exercise of powers You can specify one or more persons who are to be provided with information relating to the exercise of the attorney’s powers under the enduring power of attorney on request.

In respect of each person, you must specify the kind of informa­ tion to be provided to that person.
Under section 99B of the Act, your attorney is required to promptly comply with a request made by any of those per­ sons for information relating to the exercise of the attorney’s powers if the information requested is of the kind that you have speciﬁed that that person can request.

Assessment of mental capacity You can specify that any assessment of your mental capacity be undertaken by a health practitioner with a speciﬁed scope of practice.
The scope of practice must include the assessment of mental capacity.

Note that if you were to become mentally incapable while overseas, special provisions apply to assess­ ment of capacity.

Other matters Signing this document Before signing this document, you must receive an explanation of the effects and implications of it and other matters from the person who witnesses your signature, and that person must also give a certiﬁcate as to certain matters.
The witness must be a lawyer, an authorised ofﬁcer of a trustee corporation, or a qualiﬁed legal executive who is independent of the attorney.

However, if the attorney is appointed in his or her capacity as a lawyer, another lawyer or qualiﬁed legal 14 2008/310 Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008 Schedule Form 1 —continued executive in the lawyer’s ﬁrm can witness your signature.
Likewise, if the attorney is a trustee corporation, an authorised ofﬁcer of the corporation can witness your signature.

A qualiﬁed legal executive must be a member of, and hold a current annual registration certiﬁcate issued by, the New Zealand Institute of Legal Executives Inc, have at least 12 months experience as a legal executive, and be employed by, and under the direct supervision of, a lawyer.
Your attorney’s signature to this document must be witnessed by a person who is not the same person who witnessed your signature to the enduring power of attorney.

You cannot act as witness to the attorney’s signature.

If you appoint a successor attorney, he or she must also sign the docu­ ment, and the signature must also be witnessed by a person who is not the witness to your signature.

You cannot act as witness to the successor attorney’s signature.
Your right to revoke Once this document is signed, you can revoke it at any time by giving notice in writing to the attorney and to any successor attorney.

Your right to suspend If you become mentally incapable and subsequently recover capacity, you are entitled to suspend your attorney’s power to act under the enduring power of attorney by giving the attorney written notice.
The suspension does not revoke the enduring power of attorney, and your attorney will be able to act under it again if you are again certiﬁed as (or the Family Court decides you are) mentally incapable.

Forms that may be used to give notice of revocation or notice of sus­ pension are set out in the Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008.
Telling people that you have appointed an attorney You should send a copy of this document to people or organisations that the attorney may have dealings with under the enduring power of attorney (for example, your bank or lawyer).
15 Schedule Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008 2008/310 Form 2 Enduring power of attorney in relation to personal care and welfare Section 94A(2), Protection of Personal and Property Rights Act 1988 Appointment of attorney 1 I, [full name, address, occupation of donor], appoint [full name, address, occupation of attorney] to be my attorney in relation to my personal care and welfare for the purposes of Part 9 of the Protection of Personal and Property Rights Act 1988.
Personal care and welfare matters subject to enduring power of attorney 2 For this paragraph select the statement that applies.

Statement A I authorise my attorney authority to act on my behalf in relation to all of my personal care and welfare matters.

Statement B I authorise my attorney authority to act on my behalf in rela­ tion to the following of my personal care and welfare matters: [specify].

Optional provisions Omit any or all of paragraphs 3 to 7 if not required and renumber.
Conditions and restrictions on attorney’s power 3 The authority of my attorney referred to in paragraph 2 is sub­ ject to the following conditions and restrictions in addition to the limitations referred to in section 98(4) of the Protection of Personal and Property Rights Act 1988: [specify].
16 2008/310 Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008 Schedule Form 2 —continued Appointment of successor attorney 4 For this paragraph select the statement that applies.

Statement A (if appointing one successor attorney) If the appointment of my attorney ceases, I appoint [full name, address, occupation of successor attorney] to act as my suc­ cessor attorney in place of the attorney whose appointment has ceased and is succeeded.
Statement B (if appointing more than one successor attorney) If the appointment of my attorney ceases, I appoint [full name, address, occupation of each successor attorney] to act in suc­ cession as my successor attorneys, each of whom is to act in place of the last attorney whose appointment has ceased and is succeeded.
Attorney to consult with others 5 When acting on my behalf in relation to my personal care and welfare matters, my attorney must consult, as far as is practic­ able, with the following person/persons* in addition to myself in relation to the matters speciﬁed: [full name, address, occu­ pation of every person who must be consulted and, in respect of each person, specify that the person is to be consulted on all matters, or specify the kinds of matters or particular matters in respect of which the person is to be consulted].
*Select one.
17 Schedule Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008 2008/310 Form 2 —continued Attorney to provide information on exercise of powers 6 My attorney must provide the following person/persons* with the speciﬁed kinds of information relating to the exercise of the attorney’s powers under the enduring power of attorney if that person/those persons* should request it: [full name, address, and occupation of each person who is to be provided with information relating to the exercise of the attorney’s powers under the enduring power of attorney if the person requests it and specify the kind of information that is to be provided to each such person].
*Select one.

Assessment of mental capacity 7 Any assessment of my mental capacity for the purposes of Part 9 of the Protection of Personal and Property Rights Act 1988 is to be undertaken by [specify type of health practitioner and that health practitioner’s scope of practice, for example, a medical practioner registered with a general scope of prac­ tice].
Date: Signature of donor Signed by [name of donor] in the presence of: [full name of witness] [name of city, town, or locality where witness ordinarily resides] [occupation or description of witness] or Signed by [full name] in the presence of [full name of donor] and by the direction of [full name of donor] in the presence of: [full name of witness] 18 2008/310 Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008 Schedule Form 2 —continued [name of city, town, or locality where witness ordinarily resides] [occupation or description of witness] Signature of attorney *Signed by [name of attorney] in the presence of: [full name of witness] [name of city, town, or locality where witness ordinarily resides] [occupation or description of witness] *If one or more successor attorneys are appointed, add provision for signature by each successor attorney and by the witness to each successor attorney’s signature.
Notes The effect of the enduring power of attorney is to authorise the person you (the donor) have named as your attorney to act on your behalf in relation to your personal care and welfare if you become mentally incapable.

Mentally incapable is deﬁned in section 94(2) of the Protection of Personal and Property Rights Act 1988 (the Act).
This section pro­ vides that a donor of an enduring power of attorney is mentally inca­ pable in relation to personal care and welfare if the donor— (a) lacks the capacity— (i) to make a decision about a matter relating to his or her personal care and welfare; or to understand the nature of decisions about matters re­ lating to his or her personal care and welfare; or to foresee the consequences of decisions about matters relating to his or her personal care and welfare or of any failure to make such decisions; or (ii) (iii) (b) lacks the capacity to communicate decisions about matters re­ lating to his or her personal care and welfare.
19 Schedule Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008 2008/310 Form 2 —continued • An assessment of your mental capacity must take into account the presumption of competence in section 93B of the Act.
Every person is presumed, until the contrary is shown, to have the capacity— • to understand the nature of decisions about matters relating to his or her personal care and welfare; and to foresee the consequences of decisions about matters relating to his or her personal care and welfare or of any failure to make such decisions; and to communicate decisions about such matters.
• A person must not be presumed to lack mental capacity just because the person makes or intends to make a decision about his or her per­ sonal care and welfare that a person exercising ordinary prudence would not make in the same circumstances.

Also, a person must not be presumed to lack mental capacity just because he or she is subject to compulsory treatment or has special patient status under the Mental Health (Compulsory Assessment and Treatment) Act 1992.
Your attorney will be able to act under the enduring power of attorney only if you become mentally incapable.
Under section 98 of the Act,— • an attorney must not act in respect of a signiﬁcant matter relating to the donor’s personal care and welfare unless,— at the time a decision relating to the matter is being, or • is proposed to be, made, and in relation to that matter, a relevant health practitioner has certiﬁed, or the Family Court has determined, that the donor is mentally inca­ pable; or a relevant health practitioner has previously certiﬁed that the donor is mentally incapable because of a health condition that is likely to continue indeﬁnitely; or a relevant health practitioner has previously certiﬁed that the donor is mentally incapable because of a health condition that is likely to continue for a speciﬁed time, and the decision about the matter is being made within the speciﬁed time.
• • 20 2008/310 Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008 Schedule Form 2 —continued • an attorney must not act in respect of any other matter relating to the donor’s personal care and welfare unless the attorney believes on reasonable grounds that the donor is mentally in­ capable.
• A signiﬁcant matter relating to the donor’s personal care and welfare is deﬁned in section 98(6) of the Act to mean a matter that has, or is likely to have, a signiﬁcant effect on the health, wellbeing, or enjoyment of life of the donor (for example, a permanent change in the donor’s residence, entering residential care, or undergoing a major medical procedure).
A relevant health practitioner is a person— • who is, or is deemed to be, registered with a registration au­ thority appointed by or under the Health Practitioners Com­ petence Assurance Act 2003 as a practitioner of a particular health profession; and whose scope of practice enables him or her to assess a person’s mental capacity; and who is competent to undertake an assessment of that kind.
• In the case of a certiﬁcate of mental incapacity issued outside New Zealand, a relevant health practitioner is a person registered as a med­ ical practitioner by the competent authority of the country concerned and whose scope of practice includes the assessment of a person’s mental capacity.
A donor may specify in an enduring power of attorney that an assess­ ment of his or her mental capacity be undertaken by a health prac­ titioner with a speciﬁed scope of practice (for example, a medical practitioner registered with a general scope of practice, or a nurse whose registered scope of practice is nurse practitioner).
Provided that health practitioners who have that scope of practice are able to assess a person’s mental capacity, then only a health practitioner with the scope of practice speciﬁed by the donor and who is competent to do so may assess the donor’s mental capacity and complete the cer­ tiﬁcate.

The following notes refer to the numbered paragraphs in the form.
21 Schedule Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008 2008/310 Form 2 —continued Appointment of attorney You can appoint only one attorney to act in relation to your personal care and welfare if you become mentally incapable.

You must appoint an individual as your attorney who is at least 20 years of age, not bankrupt, and not subject to a personal order or a property order under the Act.

You may not appoint a trustee corporation to be your attorney.
A trustee corporation is the Maori Trustee, Public Trust, and any trustee company within the meaning of the Trustee Com­ panies Act 1967.

Personal care and welfare matters subject to enduring power of attorney You can authorise your attorney to act on your behalf in rela­ tion to all of your personal care and welfare matters, or only some of your personal care and welfare matters.
If you want your attorney to act only in relation to some of your personal care and welfare matters, you must specify what those matters are.

Your attorney will not, under section 98(4) of the Act, be able to act on certain matters.
These are— • to make any decision relating to the entering into mar­ riage or civil union by you, or to the dissolution of your marriage or civil union; or to make any decision relating to the adoption of any child of yours; or to refuse consent to the administering to you of any stan­ dard medical treatment or procedure intended to save your life or to prevent serious damage to your health; or to consent to the administering to you of electro­con­ vulsive treatment; or to consent to the performance on you of any surgery or other treatment designed to destroy any part of the brain or any brain function for the purpose of changing your behaviour; or • • • • 1 2 22 2008/310 Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008 Schedule 3 4 Form 2 —continued • to consent to you taking part in any medical experiment other than one to be conducted for the purpose of saving your life or of preventing serious damage to your health.
Under section 98A of the Act, your attorney’s paramount con­ sideration is the promotion and protection of your welfare and best interests, while seeking at all times to encourage you to exercise your own capacity and act on your own behalf to the greatest extent possible.

Optional provisions Conditions and restrictions on attorney’s power If you want to place conditions or restrictions on your attor­ ney’s authority, you must specify what those conditions or re­ strictions are.
Appointment of successor attorney You can appoint another individual to be your successor at­ torney in the event that your original attorney’s appointment ceases.

Section 106(1)(c) to (f) of the Act sets out the circum­ stances when an attorney’s appointment ceases, as follows: • the attorney gives notice of disclaimer in accordance with section 104 of the Act.
Disclaimer means that the attorney refuses to accept or continue the responsibility of being your attorney; or the attorney dies, or is adjudged bankrupt, or becomes a patient within the meaning of the Mental Health (Com­ pulsory Assessment and Treatment) Act 1992 detained in a hospital under that Act, or becomes subject to a per­ sonal order or a property order under the Act, or other­ wise becomes incapable of acting; or a Family Court revokes the appointment of the attorney pursuant to section 105 of the Act.
• • 23 Schedule Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008 2008/310 Form 2 —continued Attorney to consult with others When acting on your behalf under the enduring power of attor­ ney, your attorney must, as far as is practicable, consult with you.

You may specify one or more persons with whom your attor­ ney must, as far as is practicable, also consult when making decisions under the enduring power of attorney.
In respect of each of these persons, you must state the personal care and welfare matters on which your attorney is required to consult with them.

You may wish your attorney to consult with those persons on all matters, or only in respect of certain kinds of matters or particular matters.
If you appoint a separate attorney or separate attorneys in rela­ tion to your property affairs, your attorneys must consult each other regularly to ensure that your interests are not prejudiced through any breakdown in communication between them.

An attorney’s duty to consult is set out in section 99A of the Act.
Attorney to provide information on exercise of powers You can specify one or more persons who are to be provided with information relating to the exercise of the attorney’s powers under the enduring power of attorney on request.

In respect of each person, you must specify the kind of informa­ tion to be provided to that person.
Under section 99B of the Act, your attorney is required to promptly comply with a request made by any of those per­ sons for information relating to the exercise of the attorney’s powers if the information requested is of the kind that you have speciﬁed is to be provided to that person.

Assessment of mental capacity You can specify that any assessment of your mental capacity be undertaken by a health practitioner with a speciﬁed scope of practice.
The scope of practice must include the assessment of mental capacity.

Note that if you were to become mentally 5 6 7 24 2008/310 Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008 Schedule Form 2 —continued incapable while overseas, special provisions apply to assess­ ment of capacity.
Other matters Signing this document Before signing this document, you must receive an explanation of the effects and implications of it and other matters from the person who witnesses your signature, and that person must also give a certiﬁcate as to certain matters.

The witness must be a lawyer, an authorised ofﬁcer of a trustee corporation, or a qualiﬁed legal executive who is independent of the attorney.
However, if the attorney is appointed in his or her capacity as a lawyer, another lawyer or qualiﬁed legal executive in the lawyer’s ﬁrm can witness your signature.

Likewise, if the attorney is a trustee corporation, an authorised ofﬁcer of the corporation can witness your signature.
A qualiﬁed legal executive must be a member of, and hold a current annual registration certiﬁcate issued by, the New Zealand Institute of Legal Executives Inc, have at least 12 months experience as a legal executive, and be employed by, and under the direct supervision of, a lawyer.

Your attorney’s signature to this document must be witnessed by a person who is not the same person who witnessed your signature to the enduring power of attorney.

You cannot act as witness to the attorney’s signature.
If you appoint a successor attorney, he or she must also sign the docu­ ment, and the signature must also be witnessed by a person who is not the witness to your signature.

You cannot act as witness to the successor attorney’s signature.

Your right to revoke Once this document is signed, you can revoke it at any time by giving notice in writing to the attorney and to any successor attorney.
25 Schedule Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008 2008/310 Form 2 —continued Your right to suspend If you become mentally incapable and subsequently recover capacity, you are entitled to suspend your attorney’s power to act under the enduring power of attorney by giving the attorney written notice.
The suspension does not revoke the enduring power of attorney, and your attorney will be able to act under it again if you are again certiﬁed as (or the Family Court decides you are) mentally incapable.

Forms that may be used to give notice of revocation or notice of sus­ pension are set out in the Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008.
Telling people that you have appointed an attorney You should send a copy of this document to people or organisations that the attorney may have dealings with under the enduring power of attorney (for example, your doctor or any person providing care services to you).
26 2008/310 Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008 Schedule Form 3 Certiﬁcate of witness to donor’s signature on enduring power of attorney Section 94A(7), Protection of Personal and Property Rights Act 1988 I, [full name, address, occupation of witness], certify that— For this paragraph select the statement that applies.

1 Statement A I witnessed the signature of the donor, [full name of donor], on the attached enduring power of attorney form.
Statement B I witnessed the signature of [full name], who signed the at­ tached enduring power of attorney form in the presence of the donor and by the direction of the donor.

For this paragraph select the statement that applies.

Statement A I am a lawyer who holds a current practising certiﬁcate as a barrister/barrister and solicitor* issued by the New Zealand Law Society.

2 *Select one.
2 *Select one.

Statement B I am a legal executive and I— • • • • am a member of the New Zealand Institute of Legal Executives Inc; and hold a current annual registration certiﬁcate issued by the Institute; and have at least 12 months’ experience as a legal executive; and am employed by, and under the direct supervision of, a lawyer who holds a current practising certiﬁcate as a barrister/barrister and solicitor* issued by the New Zealand Law Society.

*Select one.
*Select one.

Statement C I am an ofﬁcer/employee* of [name of trustee corporation], a trustee corporation, and I am authorised by [name of trustee 27 Schedule Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008 2008/310 Form 3 —continued corporation] to witness the signature of a donor of an enduring power of attorney.

*Select one.
*Select one.

For this paragraph, select one of the following statements in respect of each attorney (and in respect of each successor at­ torney) appointed by the enduring power of attorney.

Statement A I am a lawyer/legal executive* in the same ﬁrm as [name of attorney], who, in his/her* capacity as a lawyer, is appointed as attorney/successor attorney* under the enduring power of attorney.

*Select one.
*Select one.

Statement B I am an ofﬁcer/employee* of [name of trustee corporation], that is appointed as attorney/successor attorney* under the en­ during power of attorney, and I am authorised by [name of trustee corporation] to witness the donor’s signature.

*Select one.

Statement C I am independent of [name of attorney], who is appointed as attorney/successor attorney* under the enduring power of at­ torney.

*Select one.
*Select one.

Before the donor signed the enduring power of attorney form, I explained the effects and implications of the enduring power of attorney to the donor and advised the donor of— (a) the matters referred to in the notes to the prescribed form of power of attorney; and the donor’s right to suspend or revoke the power of at­ torney; and Include this paragraph only if the enduring power of attorney is in relation to the donor’s property.
the donor’s right to— (b) *(c) 3 4 28 2008/310 Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008 Schedule Form 3 —continued • • appoint more than one attorney, or a trustee cor­ poration as attorney; and stipulate whether, and, if so, how, the attorney’s dealings with the donor’s property are to be monitored.

5 I have no reason to suspect that the donor was or may have been mentally incapable at the time he/she* signed the endur­ ing power of attorney form.
*Select one.

Date: Signature of witness: Notes 1 2 This certiﬁcate is required to be attached to the enduring power of attorney form.

The term trustee corporation means the Maori Trustee, Pub­ lic Trust, and every trustee company within the meaning of the Trustee Companies Act 1967.
29 Schedule Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008 2008/310 Form 4 Health practitioner’s certiﬁcate of mental incapacity for enduring power of attorney in relation to property Sections 97(5) and 99D, Protection of Personal and Property Rights Act 1988 I, [full name, address, registration number of health practitioner], a health practitioner, certify that— 1 I am a health practitioner registered, or deemed to be reg­ istered, with [specify responsible registration authority ap­ pointed by or under the Health Practitioners Competence As­ surance Act 2003] as a practitioner of [state particular health profession].
For this paragraph— • select Statement A if the donor has not speciﬁed in the enduring power of attorney that his or her mental cap­ acity be assessed by a health practitioner with a speci­ ﬁed scope of practice; or select Statement B if the donor has speciﬁed in the en­ during power of attorney that his or her mental cap­ acity be assessed by a health practitioner with a speci­ ﬁed scope of practice.

• Statement A My scope of practice includes the assessment of a person’s mental capacity.
Statement B My scope of practice— • includes the assessment of a person’s mental capacity; and is the same as that speciﬁed in the enduring power of attorney.

• On [date] I examined/assessed* [full name of donor], the donor of the enduring power of attorney in relation to prop­ erty dated [date enduring power of attorney was signed], to ascertain his/her* mental capacity.

*Select one.
*Select one.

2 3 30 2008/310 Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008 Schedule Form 4 —continued 4 In my opinion, the donor is mentally incapable because he/she* is not wholly competent to manage his/her* own affairs in relation to his/her* property.

*Select one.

5 The reasons for my opinion are: [specify].
Date: Signature of health practitioner: 31 Schedule Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008 2008/310 Form 4 —continued Guidelines for health practitioners completing certiﬁcate of mental incapacity (enduring power of attorney in relation to property) Please note— • this form must be used if the certiﬁcate of mental incapacity is issued in New Zealand: if the certiﬁcate of mental incapacity is issued outside New Zealand, the certiﬁcate must be in a form acceptable to the competent authority of the country concerned: these guidelines are intended to help health practitioners com­ plete the certiﬁcate of mental incapacity for an enduring power of attorney in relation to property.
Purpose of assessment and certiﬁcate The purpose of the health practitioner certiﬁcate is to record the opinion of an appropriate health practitioner about the mental capacity of a person (a donor) who has set up an enduring power of attorney (EPA) under the Protection of Personal and Property Rights Act 1988 (the Act).
An attorney appointed under an EPA in relation to property cannot act unless— • a relevant health practitioner has certiﬁed that the donor is mentally incapable; or a Family Court has determined that the donor is men­ tally incapable; or the EPA was set up in a form that authorised the attorney to act immediately after it was signed.

• • Who can complete the assessment and certiﬁcate?

The certiﬁcate of mental incapacity must be completed by a relevant health practitioner.
A relevant health practitioner is a person— • who is, or is deemed to be, registered with a registration authority appointed by or under the Health Practitioners Competence Assurance Act 2003 as a practitioner of a particular health profession; and • • 1 2 32 2008/310 Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008 Schedule Form 4 —continued • • whose scope of practice enables him or her to assess a person’s mental capacity; and who is competent to undertake an assessment of that kind.
In the case of a certiﬁcate of mental incapacity issued outside New Zealand, a relevant health practitioner is a person regis­ tered as a medical practitioner by the competent authority of the country concerned and whose scope of practice includes the assessment of a person’s mental capacity.
A donor may specify in an enduring power of attorney that an assessment of his or her mental capacity be undertaken by a health practitioner with a speciﬁed scope of practice (for ex­ ample, a medical practitioner registered with a general scope of practice, or a nurse whose registered scope of practice is nurse practitioner).
Provided that health practitioners who have that scope of practice are able to assess a person’s men­ tal capacity, then only a health practitioner with the scope of practice speciﬁed by the donor and who is competent to do so may assess the donor’s mental capacity and complete the cer­ tiﬁcate.
Deﬁnition of mentally incapable The donor of an enduring power of attorney is mentally inca­ pable in relation to property if the donor is not wholly compe­ tent to manage his or her own affairs in relation to his or her property.

Presumption of competence In assessing a donor’s mental capacity, a health practitioner must have regard to the presumption of competence in section 93B of the Act.
This states that, for the purposes of Part 9 of the Act, every person is presumed, until the contrary is shown, to be competent to manage his or her own affairs in relation to his or her property.
Imprudent behaviour A person must not be presumed to lack competence just be­ cause the person manages or intends to manage his or her own 33 3 Schedule Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008 2008/310 Form 4 —continued affairs in relation to his or her property in a way that a person exercising ordinary prudence would not do in the same cir­ cumstances.
People subject to Mental Health (Compulsory Assessment and Treatment) Act 1992 A person must not be presumed to lack competence just be­ cause that person is subject to compulsory treatment or has special patient status under the Mental Health (Compulsory Assessment and Treatment) Act 1992.
Reasons for opinion Although there is no prescribed method of assessing incap­ acity for the purpose of this certiﬁcate, it is important that the practitioner records the reasons for his or her opinion in case it is challenged.
Further certiﬁcates Where a donor has given written notice to an attorney that the attorney’s power is suspended, the attorney cannot act under the enduring power of attorney unless a further certiﬁcate is obtained from a relevant health practitioner, or the Court de­ termines that the donor is mentally incapable.
Request for certiﬁcate, payment, etc An assessment for the purpose of issuing a certiﬁcate can be requested— • by the attorney (or the successor attorney) for the donor’s property; or by any other person who is seeking the assessment and certiﬁcate for the purpose of authorising the attorney to act and who intends to pass the certiﬁcate on to the attorney.

• The health practitioner should provide the completed certiﬁ­ cate to the person who requests the assessment and certiﬁcate.
It is the responsibility of the person who requests the assess­ ment and certiﬁcate to arrange payment for the assessment and 4 5 6 34 2008/310 Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008 Schedule Form 4 —continued certiﬁcate.

This payment is recoverable by the person who re­ quests the assessment and certiﬁcate as a debt from the donor’s property.
7 More information about enduring powers of attorney You can ﬁnd more information about enduring powers of attor­ ney on the New Zealand Law Society website (www.lawsoci­ ety.org.nz) and on the Ministry of Justice website (www.just­ ice.govt.nz).

The law on enduring powers of attorney is set out in Part 9 of the Protection of Personal and Property Rights Act 1988.

A copy of this Act can be found on the New Zealand legislation website at www.legislation.govt.nz.
35 Schedule Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008 2008/310 Form 5 Health practitioner’s certiﬁcate of mental incapacity for enduring power of attorney in relation to personal care and welfare Sections 98(3) and 99D, Protection of Personal and Property Rights Act 1988 I, [full name, address, registration number of health practitioner], a health practitioner, certify that— 1 I am a health practitioner registered, or deemed to be reg­ istered, with [specify responsible registration authority ap­ pointed by or under the Health Practitioners Competence As­ surance Act 2003] as a practitioner of [state particular health profession].
For this paragraph— • select Statement A if the donor has not speciﬁed in the enduring power of attorney that his or her mental cap­ acity be assessed by a health practitioner with a speci­ ﬁed scope of practice; or select Statement B if the donor has speciﬁed in the en­ during power of attorney that his or her mental cap­ acity be assessed by a health practitioner with a speci­ ﬁed scope of practice.

• Statement A My scope of practice includes the assessment of a person’s mental capacity.
Statement B My scope of practice— • includes the assessment of a person’s mental capacity; and is the same as that speciﬁed in the enduring power of attorney.

• On [date] I examined/assessed* [full name of donor], the donor of the enduring power of attorney in relation to per­ sonal care and welfare dated [date enduring power of attorney was signed], to ascertain his/her* mental capacity.

*Select one.
*Select one.

2 3 36 2008/310 Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008 Schedule Form 5 —continued 4 For this paragraph select the statement(s) that apply.

Statement A In my opinion, the donor is mentally incapable as he/she* lacks the capacity to make a decision about [specify matter relating to donor’s personal care and welfare in respect of which a decision is being made, or is proposed to be made].

*Select one.
*Select one.

Statement B In my opinion, the donor is mentally incapable as he/she* lacks the capacity to understand the nature of decisions about [spe­ cify matter relating to donor’s personal care and welfare in respect of which a decision is being made, or is proposed to be made].

*Select one.
*Select one.

Statement C In my opinion, the donor is mentally incapable as he/she* lacks the capacity to foresee the consequences of decisions about [specify matter relating to donor’s personal care and welfare in respect of which a decision is being made, or is proposed to be made], or to foresee the consequences of any failure to make such decisions.

*Select one.
*Select one.

Statement D In my opinion, the donor is mentally incapable as he/she* lacks the capacity to communicate decisions about [specify matter relating to donor’s personal care and welfare in respect of which a decision is being made, or is proposed to be made].

*Select one.

37 Schedule Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008 2008/310 Form 5 —continued 5 6 For this paragraph select the statement that applies.
Statement A The donor’s mental incapacity is due to a health condition that is likely to continue for a period of [number] of months/years*.

*Select one.

Statement B The donor’s mental incapacity is due to a health condition that is likely to continue indeﬁnitely.

Statement C The donor’s mental incapacity is due to a health condition the duration of which I am unable to determine.

The reasons for my opinion are: [specify].
Date: Signature of health practitioner: 38 2008/310 Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008 Schedule Form 5 —continued Guidelines for health practitioners completing certiﬁcate of mental incapacity (enduring power of attorney in relation to personal care and welfare) Please note— • this form must be used if the certiﬁcate of mental incapacity is issued in New Zealand: if the certiﬁcate of mental incapacity is issued outside New Zealand, the certiﬁcate must be in a form acceptable to the competent authority of the country concerned: these guidelines are intended to help health practitioners com­ plete the certiﬁcate of mental incapacity for an enduring power of attorney in relation to personal care and welfare.
Purpose of assessment and certiﬁcate The purpose of the health practitioner certiﬁcate is to record the opinion of an appropriate health practitioner about the mental capacity of a person (a donor) who has set up an enduring power of attorney (EPA) under the Protection of Personal and Property Rights Act 1988 (the Act).
An attorney appointed under an EPA in relation to personal care and welfare cannot act on a signiﬁcant matter relating to the donor’s personal care and welfare (see paragraph 4 below) unless a relevant health practitioner has certiﬁed that the donor is mentally incapable, or a Family Court determines that the donor is mentally incapable.

Who can complete the assessment and certiﬁcate?

The certiﬁcate of mental incapacity must be completed by a relevant health practitioner.
A relevant health practitioner is a person— • who is, or is deemed to be, registered with a registration authority appointed by or under the Health Practitioners Competence Assurance Act 2003 as a practitioner of a particular health profession; and 39 • • 1 2 Schedule Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008 2008/310 Form 5 —continued • • whose scope of practice enables him or her to assess a person’s mental capacity; and who is competent to undertake an assessment of that kind.
In the case of a certiﬁcate of mental incapacity issued outside New Zealand, a relevant health practitioner is a person regis­ tered as a medical practitioner by the competent authority of the country concerned and whose scope of practice includes the assessment of a person’s mental capacity.
A donor may specify in an enduring power of attorney that an assessment of his or her mental capacity be undertaken by a health practitioner with a speciﬁed scope of practice (for ex­ ample, a medical practitioner registered with a general scope of practice, or a nurse whose registered scope of practice is nurse practitioner).
Provided that health practitioners who have that scope of practice are able to assess a person’s men­ tal capacity, then only a health practitioner with the scope of practice speciﬁed by the donor and who is competent to do so may assess the donor’s mental capacity and complete the cer­ tiﬁcate.
Deﬁnition of mentally incapable The donor of an enduring power of attorney is mentally inca­ pable in relation to personal care and welfare if the donor— (a) lacks the capacity— (i) (ii) (iii) to make a decision about a matter relating to his or her personal care and welfare; or to understand the nature of decisions about mat­ ters relating to his or her personal care and wel­ fare; or to foresee the consequences of decisions about matters relating to his or her personal care and welfare or of any failure to make such decisions; or (b) lacks the capacity to communicate decisions about mat­ ters relating to his or her personal care and welfare.
3 40 2008/310 Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008 Schedule Form 5 —continued (b) A donor’s mental capacity is determined at the time a decision about a signiﬁcant personal care and welfare matter is being, or is proposed to be, made, and is determined in relation to that matter.

Presumption of competence In assessing a donor’s mental capacity, a health practitioner must have regard to the presumption of competence in section 93B of the Act.
This states that, for the purposes of Part 9 of the Act, every person is presumed, until the contrary, is shown to have the capacity— (a) to understand the nature of decisions about matters re­ lating to his or her personal care and welfare; and to foresee the consequences of decisions about matters relating to his or her personal care and welfare or of any failure to make such decisions; and to communicate decisions about such matters.
(c) Imprudent behaviour A person must not be presumed to lack mental capacity just because that person makes or intends to make a decision about his or her personal care and welfare that a person exercising ordinary prudence would not make in the same circumstances.
People subject to Mental Health (Compulsory Assessment and Treatment) Act 1992 A person must not be presumed to lack mental capacity just because that person is subject to compulsory treatment or has special patient status under the Mental Health (Compulsory Assessment and Treatment) Act 1992.
4 Deﬁnition of signiﬁcant matter The term a signiﬁcant matter related to the donor’s per­ sonal care and welfare means a matter that has, or is likely to have, a signiﬁcant effect on the health, well­being, or enjoy­ ment of life of the donor (for example, a permanent change in the donor’s residence, entering residential care, or undergoing a major medical procedure).
Note that the health practitioner completing the certiﬁcate is not certifying that the matter is 41 Schedule Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008 2008/310 Form 5 —continued a signiﬁcant matter.

The attorney is able to act in relation to personal care and welfare matters that are not signiﬁcant ones if the attorney believes on reasonable grounds that the donor is mentally incapable.
The attorney requires the certiﬁcate in order to act in relation to a signiﬁcant matter.

The health prac­ titioner can therefore rely on the attorney’s judgement that the matter is a signiﬁcant one.

The assessment and certiﬁcate relates to a particular signiﬁcant matter.

If and when another signiﬁcant matter arises, a further assessment and certiﬁcate may be required (see paragraph 6 below).
Reasons for opinion Although there is no prescribed method of assessing incap­ acity for the purpose of this certiﬁcate, it is important that the practitioner records the reasons for his or her opinion in case it is challenged.

Further certiﬁcates Further certiﬁcates will be required whenever a decision needs to be made about a signiﬁcant matter relating to the donor’s personal care and welfare.
However, if the health practitioner certiﬁes that the donor is mentally incapable because of a health condition that is likely to continue for a period stated in the certiﬁcate, no further cer­ tiﬁcates will be required during the stated period unless the donor suspends the attorney’s power to act.
If the health practitioner certiﬁes that the donor is mentally in­ capable because of a health condition that is likely to continue indeﬁnitely, no further certiﬁcates as to the donor’s incapacity are required unless the donor suspends the attorney’s power to act.
Where a donor has given written notice to an attorney that the attorney’s power is suspended, the attorney cannot act under the enduring power of attorney unless a further certiﬁcate is 5 6 42 2008/310 Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008 Schedule Form 5 —continued obtained from a relevant health practitioner, or the Court de­ termines that the donor is mentally incapable.
7 8 Request for certiﬁcate, payment, etc An assessment for the purpose of issuing a certiﬁcate can be requested by— • the attorney (or the successor attorney) for the donor’s personal care and welfare; or by any other person who is seeking the assessment and certiﬁcate for the purpose of authorising the attorney to act and who intends to pass the certiﬁcate on to the attorney.

• The health practitioner should provide the completed certiﬁ­ cate to the person who requests the assessment and certiﬁcate.
It is the responsibility of the person who requests the assess­ ment and certiﬁcate to arrange payment for the assessment and certiﬁcate.

This payment is recoverable by the person who re­ quests the assessment and certiﬁcate as a debt from the donor’s property.

More information about enduring powers of attorney You can ﬁnd more information about enduring powers of attor­ ney on the New Zealand Law Society website (www.lawsoci­ ety.org.nz) and on the Ministry of Justice website (www.just­ ice.govt.nz).
The law on enduring powers of attorney is set out in Part 9 of the Protection of Personal and Property Rights Act 1988.

A copy of this Act can be found on the New Zealand legislation website at www.legislation.govt.nz.
43 Schedule Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008 2008/310 Form 6 Notice of suspension of attorney’s power to act under enduring power of attorney Section 100A(1), Protection of Personal and Property Rights Act 1988 To [full name of attorney] I, [full name of donor], being the donor of the enduring power of at­ torney appointing you as my attorney in relation to my property/per­ sonal care and welfare/property and personal care and welfare* dated [date enduring power of attorney was signed], give notice that— • • I am no longer mentally incapable; and I suspend your authority to act under the enduring power of attorney.
This notice does not revoke the enduring power of attorney.

*Select one.

Date: Signature of donor: Notes This notice may only be given by a donor who has been men­ tally incapable, but is no longer mentally incapable.

A copy of this notice should be sent to each attorney and suc­ cessor attorney (if any) appointed under the enduring power of attorney.
The effect of this notice is to suspend the attorney’s authority to act under the enduring power of attorney, but it does not revoke the enduring power of attorney.

The attorney cannot act under the enduring power of attorney unless the donor is certiﬁed to be mentally incapable by a relevant health practitioner or the Family Court determines the donor is mentally incapable.
A copy of this notice should be sent to the people or organisa­ tions that the attorney may have dealings with under the endur­ ing power of attorney (for example, for an enduring power of attorney in relation to property, the donor’s bank and lawyer; for an enduring power of attorney in relation to personal care 1 2 3 4 44 2008/310 Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008 Schedule Form 6 —continued 5 and welfare, the donor’s health practitioner and any persons providing care to the donor).
A copy of this notice should also be sent to any persons named in the enduring power of attorney who the attorney is required to consult.
45 Schedule Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008 2008/310 Form 7 Certiﬁcate of non­revocation and non­suspension of enduring power of attorney Section 103C, Protection of Personal and Property Rights Act 1988 I, [full name, address, occupation of attorney], certify that— 1 For this paragraph select the statement that applies.
Statement A On [date], [full name of donor] granted to me an enduring power of attorney to act in relation to his/her* property.

*Select one.

Statement B On [date], [full name of donor] granted to me an enduring power of attorney to act in relation to his/her* personal care and welfare.

*Select one.

Statement C On [date], [full name of donor] granted to me an enduring power of attorney to act in relation to his/her* personal care and welfare and his/her* property.

*Select one.
*Select one.

2 3 I have not received notice of an event revoking my authority to act under the enduring power of attorney.

I have not received written notice from [full name of donor] suspending my authority to act under the enduring power of attorney.
Date: Signature of attorney: 46 2008/310 Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008 Schedule Form 7 —continued Notes Deﬁnition of an event revoking the power of attorney An event revoking the power of attorney means any of the follow­ ing events in which the enduring power of attorney ceases to have effect: • the donor revokes the power while mentally capable of doing so; or the donor dies; or the attorney gives notice of disclaimer in accordance with sec­ tion 104 of the Protection of Personal and Property Rights 1988; or the attorney dies, or is adjudged bankrupt, or becomes a pa­ tient within the meaning of the Mental Health (Compulsory Assessment and Treatment) Act 1992 detained in a hospital under that Act, or becomes subject to a personal order under Part 1 of the Protection of Personal and Property Rights Act 1988 or a property order under Part 3 of the Protection of Per­ sonal and Property Rights Act 1988, or otherwise becomes in­ capable of acting; or in the case of an enduring power of attorney that appoints more than one attorney with joint but not several authority, one of the attorney’s dies, or is adjudged bankrupt, or becomes a pa­ tient within the meaning of the Mental Health (Compulsory Assessment and Treatment) Act 1992 detained in a hospital under that Act, or becomes subject to a personal order under Part 1 of the Protection of Personal and Property Rights 1988, or a property order under Part 3 of the Protection of Personal and Property Rights 1988, or otherwise becomes incapable of acting; or a Court revokes the appointment of the attorney pursuant to section 105 of the Protection of Personal and Property Rights 1988.
• • • • • 47 Schedule Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008 2008/310 Form 8 Notice of revocation of enduring power of attorney Section 106(1)(a), Protection of Personal and Property Rights Act 1988 To [full name of attorney] I, [full name of donor], being the donor of the enduring power of at­ torney appointing you as my attorney in relation to my property/per­ sonal care and welfare/property and personal care and welfare* dated [date enduring power of attorney was signed], give notice that I re­ voke the enduring power of attorney.
*Select one.

Date: Signature of donor: Notes This notice may only be given if the donor is mentally capable of revoking the enduring power of attorney.

A copy of this notice should be sent to each attorney and suc­ cessor attorney (if any) appointed under the enduring power of attorney.

The effect of this notice is to revoke the enduring power of attorney.

The attorney’s authority to act under the enduirng power of attorney ceases on receipt of this notice.
A copy of this notice should be sent to the people or organisa­ tions that the attorney may have dealings with under the endur­ ing power of attorney (for example, for an enduring power of attorney in relation to property, the donor’s bank and lawyer; for an enduring power of attorney in relation to personal care and welfare, the donor’s health practitioner and any person providing care to the donor).
1 2 3 4 48 2008/310 Protection of Personal and Property Rights (Enduring Powers of Attorney Forms) Regulations 2008 Form 8 —continued 5 A copy of this notice should also be sent to any persons named in the enduring power of attorney who the attorney is required to consult.

Rebecca Kitteridge, Clerk of the Executive Council.

Explanatory note This note is not part of the regulations, but is intended to indicate their general effect.
These regulations, which come into force on 26 September 2008, prescribe forms to be used for the purposes of Part 9 of the Protection of Personal and Property Rights Act 1988 in relation to the creation, suspension, and revocation of enduring powers of attorney.

Issued under the authority of the Acts and Regulations Publication Act 1989.

Date of notiﬁcation in Gazette: 18 September 2008.

These regulations are administered by the Ministry of Justice.
12 Wellington, New Zealand: Published under the authority of the New Zealand Government—2008 49