10 October 2023
C A Lane
By email: [FYI request #24109 email]
To Whom It May Concern,
1. We refer to your request under the Official Information Act 1982 for the fol owing
information:
“What process has to be taken by public trust to verify mental capacity of
donors signing EPOAs via public trust in-order for that EPOA to be
valid/processed/completed.
Can some one (a donor) sign an EPOA if not mental y capable, eg which can't
read ful y or write ful y? Which is a brain injured person which can't under
documentation?
What type of document would such person mentioned above be entitled to if
not an EPOA?
What process/measures does public trust have to take in-order to complete
signing of an EPOA of a donor with a brain injury which has obvious signs of
brain damage”.
2. Trustees are required to consider capacity when setting up an enduring power of
attorney (EPA). The starting point is that the donor is presumed to have capacity.1
The fact that a donor chooses to make decisions that someone exercising
ordinary prudence would not, is not enough to establish incompetence.2
3. It is not necessary for the donor to be ful y capable of managing their affairs. It is
sufficient that the donor understands the nature and effect of the EPA, namely
that:
a. he or she is giving power of attorney to a third party, and
b. the EPA may either come into force immediately, or when the donor
becomes incapable.
1 Protection of Personal and Property Rights Act 1988, s 93B(1).
2 Protection of Personal and Property Rights Act 1988, s 93B(2).
Public Trust
Private Bag 5902, Wel ington 6140 publictrust.co.nz
4. Except in cases of urgency, Public Trust’s usual practice is to obtain a medical
certificate when the trustee has doubt about a donor’s capacity.
5. The donor must sign the EPA in the presence of an authorised trustee. The
trustee must explain the implications of the EPA to the donor, and then certify that
the explanation has been provided and that there is no reason to doubt the
donor's capacity.
6. The Protection of Personal and Property Rights Act 1988 contains the
requirements for appointment of property managers and welfare guardians by
the Court, where a person has lost the capacity to manage their own affairs and
does not have enduring powers of attorney in place.
7. Please find attached documents summarising Public Trust’s requirements in
relation to capacity, as wel as signing and witnessing EPAs. To provide you with
a more targeted response, we have redacted information that is not relevant to
your request.
8. It is Public Trust’s policy to proactively release responses to official information
requests where possible. We wil consider publishing our response to your
request at www.publictrust.co.nz, with your personal information removed.
Yours sincerely,
Kel y Reuben
Corporate Solicitor
Enclosures:
EPA Capacity
EPA Signatures Witnessing
Public Trust
Private Bag 5902, Wel ington publictrust.co.nz