People with dementia should organise their legal affairs while they are still able to do so.  A person will then be able to have a say over the decisions that affect them and planning also helps to avoid legal problems in the future.

Everyone should have a will and an Enduring Power of Attorney.

The information provided in this section is intended for guidance only and should not replace discussion with a professional or be taken as legal advice.

Wills

A will ensures that when a person dies, their money and possessions go the people of their choice.

It is important to seek legal advice when a will is set-up or updated, and to let the lawyer know of a diagnosis of dementia.  If the lawyer is unsure of a person's mental capability they may recommend to the person to have an appropraitely qualified health professional (probably the person's GP in the first instance) check their decision-making abilities.  It is important to follow this procedure as it will reduce the chance of family or friends arguing the validity of the will, after a person has died.

 

Enduring Power of Attorney (EPA)

An Enduring Power of Attorney (EPA) is an authority given by you to another person to look after your affairs and it continues to be valid even if you lose your capacity to make or communicate decisions.  Contrary to a commonly held belief, a spouse or next of kin can not make decisions on behalf of someone who lacks mental capacity without specific prior authorisation provided in an EPA or an appropriate order from the Family Court. 

Please note that having an authority to sign on another's bank account is not the same as an EPA.

An EPA must be organised BEFORE a person loses capacity, otherwise the power will be invalid.

There are two kinds of EPA and a separate document must be signed for each:

• one that covers a person's property
• one that covers a person's care and welfare.

The person you appoint to act on your behalf is called an attorney.  The person giving the attorney the authority to manage their affairs is called the donor.  A donor often appoints one attorney to manage their care and welfare and a different attorney to manage their property.

The EPA form needs to be signed by the donor and the attorney appointed, with both signatures being independently witnessed.  An attorney must be at least 20 years old, a New Zealand resident, not bankrupt, legally capable and not subject to a personal or property order.  It is advisable to have the document prepared by a lawyer or trustee company (such as Public Trust).

 

Court Orders

If someone is already incapable of looking after their affairs and they have not set up an EPA, then certain people designated in the 3PR Act can apply to the Family Court for a personal order or to appoint a property manager and/or welfare guardian.

The appointment of a property manager or welfare guardian through the Family Court (the Court) takes longer and is more expensive than setting up an EPA, and the person appointed may not be someone you would have chosen.  So if possible, do not leave this as a "fall back" position.

 

Advance Directives

Advance directives are sometimes referred to as a living will, and they state what medical treatments a person would like to receive if they became unable to make or communicate these decisions.  It also allows a person to tell their doctor what treatment they don't want in a particular situatoin.

Like an EPA, an advance directive must be drawn up while a person still has the capacity to do so. 

It is best to initially speak to a doctor about wishes regarding medical treatment.  They can say what sort of treatments a person is likely to have in the future and the consequences of having, or not having these treatments.

An advance directive differs from an EPA and should not be seen as an alternative.  An advance directive is not legally binding, and a clinician may choose not to follow it.  However, it does provide an indication or your wishes.  An advance directive can be part of your welfare EPA and will assist an attorney in making decisions.

 

Electoral Enrolment

All persons, including those with Alzheimer's disease or a related dementia, are required to enrol on the New Zealand electoral roll, if they meet the eligibility criteria.  There is no exception to this in terms of the Electoral Act 1993.  It is compulsory to be correctly enrolled, but it is not compulsory to vote in New Zealand. 

For persons, who are either physically or mentally incapable of completing and signing their own enrolment form, assistance may be provided by another registered elector or a person holding power of attorney.

If you have any queries, contact details for the local Registrar of Electors may be found in the white pages under 'New Zealand Post Limited' or on the elections website, www.elections.org.nz or by calling 0800 36 76 56.

For further information, please visit Alzheimers New Zealand website and browse their resource section www.alzheimers.org.nz/resources.php.