Enduring Powers of Attorney (EPAs) are a cornerstone of decision-making in the aged residential care setting. They help make sure someone is ready to step in when a resident is no longer able to make or communicate decisions. But EPAs can also lead to a lot of questions for providers, especially when paperwork is incomplete or only looked at for the first time during a crisis.

Here are some of the most common questions we see, along with practical tips for navigating these issues with confidence.

1. Who should sign which agreement?

A common area of confusion is which attorney should be signing admission agreements and occupation right agreements (ORA, if applicable). The answer may surprise you.

There's no mistake that both the admission agreement and ORA have significant financial implications but who signs depends on the nature of the decision being made.

• The ORA involves agreeing to pay a large capital payment in exchange for a right (not obligation) to occupy and to receive the termination proceeds. It is a property decision which should be signed by the property attorney.
• The admission agreement is a contract for care services, which involves decisions about where the person will live and the health services they will receive. These are personal care and welfare decisions, so the personal care and welfare attorney signs.

Many personal care and welfare decisions will have financial implications but that doesn't change the nature of the decision. This is acknowledged in the obligation on personal care and welfare attorneys to consider the financial implications of decisions they make and the requirement for both attorneys to regularly consult each other.

2. Validity of older or overseas EPAs

Many providers worry when they receive an EPA that looks out of date or was signed overseas. The reality is:

• Older EPAs are still valid as long as the met the legal requirements at the time they were made.
• The forms have changed over the years (notably in 2008 and 2016) but earlier versions still stand if they were executed and witnessed correctly at the time.
• EPAs on different forms are valid as long as they are not materially different from the prescribed form.

Overseas EPAs are trickier. Since 25 September 2008, EPAs must be witnessed by a New Zealand lawyer or legal executive, or an officer of a New Zealand trustee company. So an EPA signed overseas after that date is unlikely to be valid unless it was created specifically for NZ use.

3. Where is the witness certificate?

Every EPA signed after 25 September 2008 must include a witness certificate confirming that the witness is independent and advised the donor before they signed the EPA. Without this certificate the EPA is incomplete.

We are increasingly seeing copies of EPAs being given to providers without the witness certificate attached – usually this is an innocent copying error rather than a red flag. You shouldn't rely on the EPA until the certificate has been provided. It's best to ask for the complete document as soon as the EPA is provided, rather than waiting until you need to rely on it.

4. How do you know the EPA is still current?

Before relying on an EPA and whenever an attorney makes a big decision, you should request a certificate of non-revocation and non-suspension. This certificate is your "insurance policy", it acts as proof that the EPA is still in force and hasn't been cancelled or paused.

You can rely on a certificate of non-revocation and non-suspension provided:

• You are dealing with the attorney in good faith
• You don't know that anything has happened which would revoke or suspend the EPA
• The certificate is signed immediately before or any time after the decision

Certificates of non-revocation and non-suspension are time specific, you need a fresh one every time the attorney makes an important decision such as terminating an ORA or admission agreement.

5. When can an attorney make decisions?

Personal care and welfare attorneys

EPAs for personal care and welfare only kick in when the donor has lost capacity. For significant matters the attorney must obtain a medical activation certificate before acting.

What is significant?

• Decisions about entering or leaving residential care, including signing an admission agreement
• Major medical procedures
• Any decision which will have a significant effect on the donor's health, wellbeing or enjoyment of life

For non-significant matters, the attorney can act if they have reasonable grounds to believe the donor is mentally incapable. You might have an existing resident whose capacity had declined, it would be reasonable for an attorney to rely on your clinical manager or RN's view that the resident has lost capacity. Non-significant decisions the attorney might make include consenting to a formal capacity assessment to activate the EPA, and day-to-day decisions like agreeing medication adjustments or booking a haircut while waiting for the assessment.

Property attorneys

Property EPAs are more black and white:

• If the EPA states it takes effect immediately and remains effective when the donor loses capacity the attorney can make decisions straight away and no medical certificate is needed, even for big decisions like signing an ORA.
• If the EPA states it takes effect only on mental incapacity a medical certificate is always required before the attorney makes any decisions, big or small.

The donor chooses when the EPA takes effect so you need to check the commencement section in each EPA.

How can we help?

EPA issues can be surprisingly complex, especially when documentation is missing, old or unclear. Our retirement villages and aged care specialists can assist with:

• Reviewing EPAs and advising on validity
• Identifying who has authority when different EPAs overlap or conflict
• Creating template checklists for staff
• Advising on difficult situations and disputes about attorney authority

If you'd like support navigating EPAs in your facility, get in touch. We're here to give you clarity and confidence when working with attorneys and supporting residents through important decisions.