Protection of Personal and Property Rights Amendment Act 2007

1: Title
This Act is the Protection of Personal and Property Rights Amendment Act 2007.
2: Commencement
1: This Act (except section 24
2: Section 24
3: Principal Act amended
This Act amends the Protection of Personal and Property Rights Act 1988 2008-09-25 Protection of Personal and Property Rights Act 1988 2007-09-26 s24 Protection of Personal and Property Rights Act 1988
1: Miscellaneous amendments
4: Persons who may apply for exercise of Court's jurisdiction
Section 7 paragraph (f)
f: where the exercise of the Court's jurisdiction is sought in respect of any person who is a patient or a resident in any place that provides hospital care, rest home care, or residential disability care within the meaning of the Health and Disability Services (Safety) Act 2001 .
5: Persons who may apply for exercise of Court's jurisdiction
Section 26 paragraph (g)
g: where the exercise of the Court's jurisdiction is sought in respect of any person who is a patient or a resident in any place that provides hospital care, rest home care, or residential disability care within the meaning of the Health and Disability Services (Safety) Act 2001 .
2: Amendments relating to enduring powers of attorney
6: New sections 93A and 93B inserted
The following sections are inserted after the Part 9
93A: Purpose of this Part
1: The purpose of this Part is to enable a person (the donor
a: grant to another person an enduring power of attorney to act in relation to the donor's personal care and welfare if the donor becomes mentally incapable:
b: grant to another person or persons enduring powers of attorney to act in relation to the donor's property affairs—
i: if the donor becomes mentally incapable; or
ii: while the donor is mentally capable and if the donor becomes mentally incapable:
c: grant to another person an enduring power of attorney to act in both capacities.
2: Accordingly, this Part—
a: states the requirements for creating an enduring power of attorney:
b: defines when a donor is mentally incapable for the purposes of this Part:
c: states the duties of an attorney (in addition to those set out in the enduring power of attorney):
d: sets out the Court's jurisdiction in respect of an enduring power of attorney:
e: provides for the review by the Court of any decision of an attorney:
f: establishes the circumstances in which an enduring power of attorney may be suspended or revoked.
93B: Presumption of competence
1: For the purposes of this Part, every person is presumed, until the contrary is shown,—
a: to be competent to manage his or her own affairs in relation to his or her property:
b: to have the capacity—
i: to understand the nature of decisions about matters relating to his or her personal care and welfare; and
ii: 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
iii: to communicate decisions about those matters.
2: A person must not be presumed to lack the competence described in subsection (1)(a)
3: A person must not be presumed to lack the capacity described in subsection (1)(b)
4: A person must not be presumed to lack the competence described in subsection (1)(a) subsection (1)(b) Mental Health (Compulsory Assessment and Treatment) Act 1992
7: New sections 94 and 94A substituted
Section 94
94: Interpretation
1: For the purposes of this Part, the donor of an enduring power of attorney is mentally incapable 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.
2: For the purposes of this Part, the donor of an enduring power of attorney is mentally incapable 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
ii: to understand the nature of decisions about matters relating to his or her personal care and welfare; or
iii: 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 matters relating to his or her personal care and welfare.
3: Nothing in subsection (1) or (2)
4: In this Part— health practitioner
a: has the meaning given to it by section 5(1) of the Health Practitioners Competence Assurance Act 2003
b: in the case of a certificate of mental incapacity issued outside New Zealand, means a person registered as a medical practitioner by the competent authority of the State concerned lawyer section 6 of the Lawyers and Conveyancers Act 2006 prescribed form relevant health practitioner
a: whose scope of practice includes the assessment of a person's mental capacity; or
b: whose scope of practice—
i: includes the assessment of a person's mental capacity; and
ii: is specified in the enduring power of attorney (for example, a specialist).
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 one, by each attorney).
4: The signature of the donor must be witnessed by a person who, subject to subsection (8)
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)
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 one 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.
7: The witness to the donor's signature must certify on the prescribed form that—
a: the requirements of subsection (6)
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)
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)
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
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.
8: When power of attorney is an enduring power of attorney
1: Section 95 subsection (1)
1: Except as otherwise provided in this section, a power of attorney that meets the requirements of section 94A
2: Section 95 subsection (2)
2: A power of attorney purporting to be an enduring power of attorney has effect even though it is not in the prescribed form, but only if—
a: no prescribed provision is substantially omitted; and
b: the differences are immaterial.
9: Enduring power of attorney in relation to property
Section 97
4: A donor of an enduring power of attorney may—
a: authorise the enduring power of attorney to have effect while the donor is mentally capable and to continue to have effect if the donor becomes mentally incapable; or
b: authorise the enduring power of attorney to have effect only if the donor becomes mentally incapable.
5: If subsection (4)(b)
10: New section 97A inserted
The following section is inserted after section 97
97A: Exercise of enduring power of attorney in relation to property
1: This section applies to an attorney acting under an enduring power of attorney in relation to the donor's property if the donor of the power becomes mentally incapable.
2: The paramount consideration of the attorney is to use the donor's property in the promotion and protection of the donor's best interests, while seeking at all times to encourage the donor to develop the donor's competence to manage his or her own affairs in relation to his or her property.
3: This section applies regardless of whether the enduring power of attorney is of the type referred to in section 97(4)(a) or (b)
11: Enduring power of attorney in relation to personal care and welfare
1: Section 98 subsection (3)
3: The attorney—
a: must not act in respect of a significant matter relating to the donor's personal care and welfare unless a relevant health practitioner has certified, or the Court has determined, that the donor is mentally incapable; and
b: 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 incapable.
3A: For the purposes of subsection (3)
a: at the time a decision about the matter relating to the donor's personal care and welfare is being made or is proposed to be made; and
b: in relation to the personal care and welfare matter concerned.
3B: Despite subsection (3A)
a: if the donor is certified as mentally incapable because of a health condition that is likely to continue indefinitely, no further certificates are required under subsection (3)(a)
b: if the donor is certified as mentally incapable because of a health condition that is likely to continue for a period specified in the certificate, no further certificates are required under subsection (3)(a)
2: Section 98
6: In subsection (3)(a) significant matter relating to the donor's personal care and welfare
12: New section 98A inserted
The following section is inserted after section 98
98A: Exercise of enduring power of attorney in relation to personal care and welfare
1: This section applies to an attorney acting under an enduring power of attorney in relation to the donor's personal care and welfare.
2: The paramount consideration of the attorney is the promotion and protection of the welfare and best interests of the donor, while seeking at all times to encourage the donor to develop and exercise his or her capacity to—
a: understand the nature and foresee the consequences of decisions relating to his or her personal care and welfare; and
b: communicate such decisions.
3: Without limiting the generality of subsection (2)
a: encourage the donor to act on his or her own behalf to the greatest extent possible; and
b: seek to facilitate the integration of the donor into the community to the greatest extent possible.
4: When deciding any matter relating to the donor's personal care and welfare, the attorney must give due consideration to the financial implications of that decision in respect of the donor's property.
13: Both kinds of power may be given
Section 99 subsection (2)
2: If subsection (1)(b)
3: Subsection (2)
a: the enduring power of attorney; and
b: any direction of the Court under section 101
14: New sections 99A to 99D inserted
The following sections are inserted after section 99
99A: Attorney's duty to consult
1: When acting under an enduring power of attorney, the attorney must, as far as is practicable, consult—
a: the donor; and
b: in relation to any particular matter, any person specified in the enduring power of attorney to be consulted, generally, in respect of matters of that kind, or in respect of that matter.
2: An attorney acting under an enduring power of attorney in relation to the donor's personal care and welfare may, subject to any consultation under subsection (1) section 98(4)
3: The attorney may follow any advice given under subsection (1)
4: The attorney may apply to a court for directions under section 101 subsection (1)
5: The attorney is not liable in respect of anything done or omitted to be done in accordance with the Court's directions.
6: Nothing in subsection (4)
7: If a donor has, under an enduring power of attorney, appointed one attorney in relation to his or her property and another attorney in relation to his or her personal care and welfare, both attorneys must consult each other regularly to ensure that the donor's interests are not prejudiced through any breakdown in communication between them.
99B: Attorney must provide information on exercise of powers
An attorney must promptly comply with any request for information relating to the exercise of the attorney's powers under the enduring power of attorney if—
a: the person requesting the information is specified in the enduring power of attorney as a person to be provided with such information and the information requested is the kind of information specified in the enduring power of attorney to be provided to that person:
b: the person requesting the information is a barrister or solicitor appointed under section 65 section 99C
99C: Attorney as to property must keep records
1: An attorney under an enduring power of attorney in relation to a donor's property must keep records of each financial transaction entered into by the attorney under the enduring power of attorney while the donor is mentally incapable.
2: An attorney who fails without reasonable excuse to comply with subsection (1)
99D: Medical certification of incapacity
1: A certificate of the donor's mental incapacity under this Part must be—
a: in the prescribed form; or
b: if the certificate is issued outside New Zealand, in a form acceptable to the competent authority of the State concerned.
2: The donor may specify in an enduring power of attorney that the assessment of his or her mental capacity for the purposes of this Part be undertaken by a health practitioner with a specified scope of practice, but only if the scope of practice specified includes the assessment of a person's mental capacity.
3: The cost of any medical assessment or examination reasonably required for the purpose of certifying whether the donor is mentally incapable under this Part is recoverable as a debt from the donor's property.
15: New section 100A inserted
The following section is inserted after section 100
100A: Suspension of attorney's power to act
1: A donor of an enduring power of attorney who has been, but is no longer, mentally incapable may suspend the attorney's authority to act under the enduring power of attorney by giving written notice to the attorney.
2: An attorney whose authority is suspended may not act under the enduring power of attorney unless a relevant health practitioner has certified, or the Court has determined, that the donor is mentally incapable.
3: The suspension does not revoke the enduring power of attorney.
4: Nothing in this section affects the donor's right to revoke the enduring power of attorney while the donor is mentally capable.
16: Court's jurisdiction in respect of enduring power of attorney
1: Section 102(2)(c)(v) section 99(2)
2: Section 102(2) paragraph (g)
ga: authorise the attorney to make any loan or advance of the donor's property subject to—
i: any conditions that the Court considers appropriate; and
ii: any conditions or restrictions contained in the instrument: .
3: Section 102(2)
j: authorise an attorney acting under an enduring power of attorney in relation to a donor's property to execute a will for and on behalf of the donor if the Court is satisfied that—
i: the donor lacks testamentary capacity; and
ii: there is no express provision to the contrary in the enduring power of attorney.
4: Section 102 subsection (2)
2A: For the purposes of any application for the exercise of the Court's jurisdiction under subsection (2)(j), section 55
17: New section 102A inserted
The following section is inserted after section 102
102A: Persons who may apply for exercise of Court's jurisdiction
An application to a court for the exercise of its jurisdiction under section 102 or 105
a: any person listed in section 103(1)
b: any other person with the leave of the Court.
18: New sections 103 to 103C substituted
Section 103
103: Review of attorney's decisions
1: Any of the following people may at any time apply to a court to review any decision made by an attorney acting under an enduring power of attorney while the donor is or was mentally incapable:
a: the donor of the enduring power of attorney:
b: a relative or attorney of the donor (not being the attorney whose decision is sought to be reviewed):
c: a social worker:
d: a medical practitioner:
e: a trustee corporation:
f: if the donor is a patient or a resident in any place that provides hospital care, rest home care, or residential disability care within the meaning of the Health and Disability Services (Safety) Act 2001
g: any welfare guardian who has been appointed for the donor:
h: a person authorised by a body or organisation contracted by the Government to provide elder abuse and neglect prevention services.
2: Any other person may apply for a review if the Court gives leave to do so.
3: For the avoidance of doubt, an application for review may be made while the enduring power of attorney is in force or after it is revoked by the death of the donor or otherwise.
4: The Court may, if it thinks it reasonable to do so in all the circumstances, review the decision and make any order it thinks fit.
5: An order under subsection (4)
103A: Validity of actions under power of attorney not meeting requirements of
section 94A or 95 The fact that a power of attorney is not an enduring power of attorney because of any failure to meet the requirements of section 94A or 95
a: any act of the attorney done under the power of attorney in good faith with no knowledge of the failure; or
b: any transaction entered into by the attorney under the power of attorney if the other party to the transaction entered into it in good faith and with no knowledge of the failure.
103B: Effect of attorney's decision on third parties
A person dealing with an attorney acting under an enduring power of attorney in respect of any matter within the power of attorney—
a: does not have to inquire about the concurrence or otherwise of the donor or any other person; and
b: is not affected by notice that the donor or any other person has not concurred.
103C: Effect of attorney's actions, etc, before notice of revocation or suspension received
1: This section applies, instead of section 20(1) to (4) section 18 of the Protection of Personal and Property Rights Amendment Act 2007 section 20(5)(b)
2: An enduring power of attorney continues in force until notice of an event revoking the power is received by the attorney.
3: The authority of an attorney to act under an enduring power of attorney continues in force until notice suspending that authority is received by the attorney.
4: Every act or thing within the scope of the enduring power of attorney done by or to the attorney in good faith before he or she receives notice of any event revoking the power of attorney has effect as if the event had not occurred.
5: Every act or thing within the scope of an enduring power of attorney done by or to the attorney in good faith before he or she receives notice that his or her authority to act under the power of attorney is suspended has effect as if the authority were not suspended.
6: A person dealing with the attorney may rely on a certificate of non-revocation and non-suspension of the enduring power of attorney in the prescribed form as conclusive proof of the non-revocation and non-suspension of the power of attorney as at the date of the certificate if—
a: the person—
i: is dealing with the attorney in good faith; and
ii: does not have actual knowledge that an event revoking the power of attorney has occurred, or that the attorney's authority to act under it has been suspended; and
b: the certificate—
i: is signed by the attorney or, if the attorney is a corporation, an officer or employee of the corporation authorised by the corporation for the purposes of this subsection; and
ii: is given immediately before, or any time after, the doing of a thing by the attorney.
7: A person who knowingly gives a false certificate commits an offence and is liable on summary conviction to a fine not exceeding $5,000.
8: An event revoking the power of attorney section 106(1) When compiling, remove <insertwords> tags from 103C(1) in PPPR Act; they will be irrelevant and inaccurate in that enactment. Section 18 amended 1 January 2008 section 364(1) Property Law Act 2007
19: Disclaimer by attorney
1: Section 104 subsection (2)
2: If the donor is mentally incapable, the attorney must file with the notice a report stating—
a: that the attorney considers it is in the interests of the donor that a welfare guardian be appointed in relation to the donor's personal care and welfare, or a property manager be appointed in relation to the donor's property; or
b: that the attorney considers it is not necessary that a welfare guardian or property manager be appointed, and why the attorney considers it not necessary.
2: Section 104(3) section 7 or section 26 of this Act section 103
20: Court may revoke appointment of attorney
Section 105 subsection (1)
1: The Court may, in any proceeding commenced under section 101, 102A, or 103
a: is not acting, or proposes not to act, in the best interests of the donor; or
b: is failing, or has failed, to comply with any of the attorney's obligations under section 99A or 99B
1A: In any proceedings commenced under section 101 or 102
21: Circumstances in which enduring power of attorney shall cease to have effect
Section 106(1)(a) , by notice in writing to the attorney, donor
22: New section 107 substituted
Section 107
107: Attorney's power to benefit self and others
1: An attorney under an enduring power of attorney must not, at any time while the donor is mentally incapable, act to the benefit of the attorney or of a person other than the donor, or recover any expenses from the donor's property, unless and only to the extent that—
a: the donor has specified a power to so act in the enduring power of attorney; or
b: the Court authorises the attorney to so act in an order under section 102(2)(g) or (ga)
c: the attorney's actions relate to one or more of the following matters and the enduring power of attorney does not expressly provide otherwise:
i: if the attorney and donor are married to, or in a civil union or de facto relationship with, each other, and are living together and sharing their incomes, any action taken by the attorney in respect of real or personal property that the donor and the attorney own jointly and not as tenants in common:
ii: any payments of a kind described in subsection (2)
iii: if acting under an enduring power of attorney in relation to the donor's property, any loan or advance or other investment of the donor's property that a trustee could make of trust funds under section 13A of the Trustee Act 1956
2: The payments referred to in subsection (1)(c)(ii)
a: out-of-pocket expenses (other than lost wages or remuneration) reasonably incurred by an attorney; or
b: professional fees and expenses reasonably incurred by an attorney who—
i: has accepted appointment in a professional capacity; or
ii: has undertaken work in any professional capacity to give effect to the decisions taken under the enduring power of attorney.
23: New sections 108AA and 108AAB inserted
The following sections are inserted after section 108
108AA: Enduring powers of attorney created before Protection of Personal and Property Rights Amendment Act 2007
1: In this section, commencement date section 23 of the Protection of Personal and Property Rights Amendment Act 2007
2: If an enduring power of attorney is executed but not effective before the commencement date,—
a: section 94A
b: section 95(1) and (2)
3: If an enduring power of attorney is effective before the commencement date,—
a: sections 94A and 107
b: sections 95(1), (2), and 107
108AAB: Review of Protection of Personal and Property Rights Amendment Act 2007
1: The Minister of State for the time being responsible for senior citizens must, as soon as practicable, 5 years after the commencement of section 23 of the Protection of Personal and Property Rights Amendment Act 2007
a: review the effectiveness of the amendments to this Act made by the Protection of Personal and Property Rights Amendment Act 2007; and
b: consider whether any amendments to this Act are necessary or desirable; and
c: prepare a report on the findings.
2: The Minister must present a copy of the report to the House of Representatives no later than 6 years after the commencement of section 23 of the Protection of Personal and Property Rights Amendment Act 2007
24: Regulations
Section 112 paragraph (b)
ba: prescribing forms for enduring powers of attorney for the purposes of Part 9
bb: prescribing forms for certificates for the purposes of the witnessing requirements in section 94A(7)
bc: prescribing forms for certificates for the purposes of any medical examination or assessment under Part 9
bd: prescribing forms that may be used for the suspension and revocation of enduring powers of attorney for the purposes of Part 9
be: prescribing the form for the certificate of non-revocation and non-suspension of the enduring power of attorney for the purposes of section 103C(6) .
25: Schedule 3 repealed
Schedule 3
26: Consequential amendment to
section 20 of Property Law Act 2007 Section 20 of the Property Law Act 2007 5 If the power of attorney is an enduring power of attorney within the meaning of Part 9 of the Protection of Personal and Property Rights Act 1988
a: section 103C of that Act subsections (1) to (4)
b: if a certificate of non-revocation of the power of attorney was given in respect of the enduring power of attorney before the commencement of section 18 of the Protection of Personal and Property Rights Amendment Act 2007 subsections (1) to (4) section 103C of the Protection of Personal and Property Rights Act 1988 2008-09-25 s 20 Section 26 heading amended 1 January 2008 section 364(1) Property Law Act 2007 Section 26 amended 1 January 2008 section 364(1) Property Law Act 2007