Geekzone: technology news, blogs, forums
Guest
Welcome Guest.
You haven't logged in yet. If you don't have an account you can register now.


1220 posts

Uber Geek
+1 received by user: 58


Topic # 207731 11-Jan-2017 15:55
Send private message

I am after some free legal advice, as I have a pressing need but do not have the capacity to pay.

I have approached Community Law who clam up on answering my questions. Maybe because to be efficient and not send 10 emails, I send one with multiple questions.

The main question I want answered, is I have power of attorney for someone, and I wish to cancel that, but the other parties lawyer says they will bill me (a lot) to do this, is there any free way to get it done?

Create new topic
3064 posts

Uber Geek
+1 received by user: 909

Trusted
Subscriber

  Reply # 1701467 11-Jan-2017 16:03
Send private message

Try your local citizens advice bureau for alternatives. Or maybe @dejadeadnz can provide a pointer?


314 posts

Ultimate Geek
+1 received by user: 252


  Reply # 1701520 11-Jan-2017 17:15
2 people support this post
Send private message

There are two types of Power of Attorney, and two ways of ending such an authority, depending on the type. It will get more complex if the person for whom you are the PoA is (mentally) incompetent in some way; i.e. they aren't capable of finding a replacement PoA for themselves (after all, when you agreed to accept the Power of Attorney you agreed to accept some responsibilities because the person can't).

Powers of Attorney are not trivial matters, and Enduring in particular carry deep responsibilities. I highly recommend you seek legal advice from a competent lawyer; this is not something that can be simply and easily achieved. It is not reasonable to suddenly and arbitrarily end a PoA arrangement - the person for whom you are acting may well not be in a position to look after themselves. So the law makes ending such an arrangement a considered process, and quite rightly.

To answer your question, there is no free way to do this.





BlinkyBill

314 posts

Ultimate Geek
+1 received by user: 252


  Reply # 1701526 11-Jan-2017 17:22
Send private message

Read through this communitylaw.org.nz/community-law-manual/chapter-22-elder-care-and-powers-of-attorney/power-of-attorney-appointing-someone-to-make-decisions-for-you-chapter-22/

This is a good overview, but it can easily be quite a complex issue.




BlinkyBill



1220 posts

Uber Geek
+1 received by user: 58


  Reply # 1701582 11-Jan-2017 17:58
Send private message

BlinkyBill: To answer your question, there is no free way to do this.


That's quite sad then. I may have to file for bankruptcy. Who pays the bill then?



1220 posts

Uber Geek
+1 received by user: 58


  Reply # 1701587 11-Jan-2017 18:09
Send private message

My desire to end the EPA, is due to it outreaching the scope of what I thought it meant. I thought it was all about making decisions about care and/or asset matters. Which I have no problems with at all.

Where the scope crept was the ability to be effectual from a great distance and who pays if neither party has the means up front. So how can I organise anything to be done from 1000km away, if I don't have funds to pay for what I organise? If I travel myself, and the cost is $1000, then if niether party has the $1000, then it can't happen, therefore what needs to be done, can't, therefore I'm "failing in my obligation" as EPA.

From what I've read, unless it only applies to lawyers screwing up, is if I fail to do certain things as EPA, I become financially liable?

1169 posts

Uber Geek
+1 received by user: 872

Subscriber

  Reply # 1701684 11-Jan-2017 21:17
Send private message

Dratsab:

 

Try your local citizens advice bureau for alternatives. Or maybe @dejadeadnz can provide a pointer?

 

 

It's really not my area. And PoA is kind of like the likes of tax law and IP law where unless you are truly an expert in the area (and I am not and never have been), it's best that even a legally qualified person doesn't go there. Whilst I sympathise with the OP's situation, becoming someone's attorney is a serious endeavour and should have presumably been entered into with the benefit of legal advice. There are many obvious reasons why the law doesn't make it easy for an attorney to quit as and when he/she wishes. I suggest the OP have a read of the Protection of Personal and Property Rights Act and this guide from the Law Society.

 

 

 

Edit: In this case, I can say that the only sure-fire way of doing this is by making an application to the Family Court. These days the Family Court is reasonably litigant-in-person friendly so it's conceivable that the OP can arrange a limited retainer with a lawyer to appear to run the case on his behalf whilst he is given some broad guidelines on preparing the supporting documents like his affidavit. With the right lawyer, the fee might only be a low four-figure sum.

 

 

 

 




1220 posts

Uber Geek
+1 received by user: 58


  Reply # 1701717 11-Jan-2017 21:49
Send private message

Quoting page 2 bottom line of Law Soc booklet...

I believe the following applies:

"However, you must arrange an EPA before you become mentally incapable; otherwise the power will be invalid."

"If you are already incapacitated, you are deemed not capable of granting a valid power of attorney"

Also reading the legislation:

"Remission of fees in cases of hardship
Where it appears to the Registrar of a court that the payment of any fees prescribed as payable in respect of any proceedings under this Act, or of those fees in full, would cause undue hardship to the person liable for their payment, the Registrar may remit the whole or such part of the fees as the Registrar thinks fit, and may, without further appropriation than this section, refund all such fees that have already been paid or any part of such fees."

If I get billed, I'll file for bankruptcy... as I have negative $70k equity already and this will be the straw that breaks the camel's back. Is the remission of fees applicable here?

1169 posts

Uber Geek
+1 received by user: 872

Subscriber

  Reply # 1701722 11-Jan-2017 22:02
Send private message

You've got nothing to lose. File your papers and make your case for a fees waiver to the Family Court. If you are desperate enough, file your own papers -- the court staff will give you some degree of assistance as to what papers you will need to file. It sure beats relying on speculation.

 

 

 

 

 

 

 

 


1764 posts

Uber Geek
+1 received by user: 126


  Reply # 1701807 12-Jan-2017 08:46
Send private message

Geese ... FWIW, don't panic undecided

 

As I understand it (I hold such for my elderly mother), most responsibilities under a PoA/EPA are administrative, advisory and making decisions on behalf of a person incapacitated to do so themselves. When it comes to an action that may incur financial input, e.g. private hospital care, retirement home etc, if the person does not have such resources for you to draw on, then usually Governmental/Public agencies step in ... viz. I don't see how you would be personally responsible for such costs.

 

As for geographic distances, this is usually not a matter for concern as these days most business or personal transactions can be conducted via email. I do this as my mother is resident in another country.

 

If, however, your PoA specifically requires you to be financially responsible in some manner, then as has been already said you need professional legal advice.


sxz

626 posts

Ultimate Geek
+1 received by user: 136


  Reply # 1701821 12-Jan-2017 09:33
Send private message

Geese: I am after some free legal advice, as I have a pressing need but do not have the capacity to pay.

I have approached Community Law who clam up on answering my questions. Maybe because to be efficient and not send 10 emails, I send one with multiple questions.

The main question I want answered, is I have power of attorney for someone, and I wish to cancel that, but the other parties lawyer says they will bill me (a lot) to do this, is there any free way to get it done?

 

 

 

Lawyer here.  Power of attorneys can be cancelled by notice in writing.  Give them written notice that the POA is revoked and they can no longer use it.  Most lawyers would give you this advice for free.




1220 posts

Uber Geek
+1 received by user: 58


  Reply # 1701826 12-Jan-2017 09:46
Send private message

sxz:Power of attorneys can be cancelled by notice in writing. Give them written notice that the POA is revoked and they can no longer use it. Most lawyers would give you this advice for free.



To be honest I did this months ago, via email, it was received, but not acted upon and no reply given... and was told indirectly via donor, that there would be a charge to do this and that it would come directly to me since I'm requesting it. Therefore I never pressed the issue as it would be credit rating suicide.

So I no longer wish to be EPA, but I have to be because I can't afford to get out of it. Although in above quotes from the Law Society, seems to me the EPA was technically invalid from day 1, as said person was assessed as diminished mental capacity well before EPA was drawn up (presumably the lawyer was unaware of this).


314 posts

Ultimate Geek
+1 received by user: 252


  Reply # 1701827 12-Jan-2017 09:47
One person supports this post
Send private message

sxz:

Geese: I am after some free legal advice, as I have a pressing need but do not have the capacity to pay.

I have approached Community Law who clam up on answering my questions. Maybe because to be efficient and not send 10 emails, I send one with multiple questions.

The main question I want answered, is I have power of attorney for someone, and I wish to cancel that, but the other parties lawyer says they will bill me (a lot) to do this, is there any free way to get it done?


 


Lawyer here.  Power of attorneys can be cancelled by notice in writing.  Give them written notice that the POA is revoked and they can no longer use it.  Most lawyers would give you this advice for free.



I think Geese has been granted Power of Attorney by a donor. Geese can advise that he/she no longer wishes to act in this capacity, by providing notice in writing, I believe this called giving notice of disclaimer. I would think this needs to be reasonably formal document and perhaps witnessed. But I'm not a lawyer, albeit I have been a PoA.

But reading between the lines here it looks like there is an issue that underpins the desire to give up the authority. It looks like Geese is being asked to pay for something on behalf of the donor.

PoA does not oblige the Attorney to cover costs on behalf of the donor; but I suspect Geese is getting some heat from somewhere to pay for something incurred by the donor. Geese does not need to worry about that.

It is hard to be an effective Attorney from 1,000 km away and with limited funds.




BlinkyBill

470 posts

Ultimate Geek
+1 received by user: 106

Subscriber

  Reply # 1701933 12-Jan-2017 11:02
Send private message

To answer your basic question; the process to cancel ("disclaim") your responsibilities as enduring power of attorney is clear and simple and carries no costs.

 

I'm assuming as you say that the person ("donor") is deemed "mentally incapable".

 

1) You must file a written notice with the Family Court stating that;
a) You were appointed enduring power of attorney for this person.
b) You no longer have the capability to carry out this function.
c) You "consider it is in the interests of the donor that a welfare guardian be appointed in relation to the donor’s personal care and welfare" and/or "a property manager be appointed in relation to the donor’s property".
d) Include all relevant documents.
e) Date, sign and witness the document and post or hand original to your nearest family court.

 

2) You should inform the donor and all relevant parties (relatives, GP, social workers, WINZ etc) by writing that you are no longer acting as power of attorney for that person and the court has or is in the process of appointing a welfare guardian.

 

See:
"Disclaimer by attorney" http://www.legislation.govt.nz/act/public/1988/0004/latest/whole.html#DLM127567
"File your documents" https://www.justice.govt.nz/family/about/file-and-serve-documents/#file
"Other applications don’t have a fee" https://www.justice.govt.nz/family/about/fees-and-costs/

 


As others have pointed out however your fundamental issues appear to stem from perceived costs and logistics involved in carrying out your duties. Acting as POA need not be an undue burden if you consider yourself the chairman for this person (helping to make the big decisions) as opposed to the project manager (social worker) and "outsource" day-to-day responsibilities to the appropriate public and private agencies.

 

Before carrying out the above I would highly recommend seeking support and advise from some of these agencies i.e.:
https://www.ageconcern.org.nz/
https://www.workandincome.govt.nz/
http://www.salvationarmy.org.nz/
http://www.cab.org.nz/
http://www.nznasca.co.nz/
http://www.health.govt.nz/your-health/services-and-support/health-care-services/services-older-people/support-services-older-people

 

Not to mention if there are specific areas where you could receive community support for yourself or this person: https://givealittle.co.nz/




1220 posts

Uber Geek
+1 received by user: 58


  Reply # 1702177 12-Jan-2017 17:11
One person supports this post
Send private message

I would like to thank each and every person, who contributed to this thread. All the input was constructive and useful, and helped me a great deal. I appreciate all the time you have taken out of your days to look into links and write your replies here.

Thank you.


1169 posts

Uber Geek
+1 received by user: 872

Subscriber

Reply # 1702201 12-Jan-2017 19:23
Send private message

sxz:

 

 Lawyer here.  Power of attorneys can be cancelled by notice in writing.  Give them written notice that the POA is revoked and they can no longer use it.  Most lawyers would give you this advice for free.

 

 

This is so ridiculously wrong as an absolute, unqualified statement it's not even funny. Have you ever read s 104 of the Protection of Personal and Property Rights Act? For heaven's sake, we even have lay people here who have given you hints about what to look for. In short, the OP tells us that he holds an enduring power of attorney and s 104 has this to say (amongst other things):

 

104 Disclaimer by attorney

 


(1) An attorney under an enduring power of attorney may not disclaim that power otherwise than by notice given as follows:

 

(a) where the donor is not mentally incapable, by written notice to the donor:

 

(b) where the donor is mentally incapable, by filing a notice in a court.

 

(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. 

 

 

 

How on earth does this line up with your original statement? We already know the OP is somewhat emotionally flustered over this and is liable to fall prey to the well-known psychological phenomenon of confirmation bias (i.e. seeing things that he wants to see). It's completely irresponsible to give him advice that is at best not sufficiently nuanced (i.e. that he needs to consider/take advice on whether the donor is currently mentally incapable in order to determine the truly valid way of cancelling the EPA and the benefit of going to the FC as a risk-management strategy) and at worst outright wrong if taken literally.

 

Geese: So I no longer wish to be EPA, but I have to be because I can't afford to get out of it. Although in above quotes from the Law Society, seems to me the EPA was technically invalid from day 1, as said person was assessed as diminished mental capacity well before EPA was drawn up (presumably the lawyer was unaware of this).

 

With the greatest of respect, you might think the person was assessed as being of diminished mental capacity. But this isn't necessarily co-extensive with the concept of mental incapacity under the Act. Generally, legal documents once executed are best treated as valid rather assumed to be void from the outset because of a subjective view. You really need to take some serious advice before proceeding further. If you can't afford to pay, Solutionz has given you some great potential resources to go to. Bankruptcy might protect you against having to pay any judgment sum (to some extent anyway - you may still find yourself having the official assignee clinging to you like a cheap shirt for years -- not a pleasant prospect) but a court judgment against you is no small matter for things like employability and personal reputation.

 

 

 

 

 

 


Create new topic

Twitter »

Follow us to receive Twitter updates when new discussions are posted in our forums:



Follow us to receive Twitter updates when news items and blogs are posted in our frontpage:



Follow us to receive Twitter updates when tech item prices are listed in our price comparison site:





News »

Cove sells NZ's first insurance policy via chatbot
Posted 25-Jun-2018 10:04


N4L helping TAKA Trust bridge the digital divide for Lower Hutt students
Posted 18-Jun-2018 13:08


Winners Announced for 2018 CIO Awards
Posted 18-Jun-2018 13:03


Logitech Rally sets new standard for USB-connected video conference cameras
Posted 18-Jun-2018 09:27


Russell Stanners steps down as Vodafone NZ CEO
Posted 12-Jun-2018 09:13


Intergen recognised as 2018 Microsoft Country Partner of the Year for New Zealand
Posted 12-Jun-2018 08:00


Finalists Announced For Microsoft NZ Partner Awards
Posted 6-Jun-2018 15:12


Vocus Group and Vodafone announce joint venture to accelerate fibre innovation
Posted 5-Jun-2018 10:52


Kogan.com to launch Kogan Mobile in New Zealand
Posted 4-Jun-2018 14:34


Enable doubles fibre broadband speeds for its most popular wholesale service in Christchurch
Posted 2-Jun-2018 20:07


All or Nothing: New Zealand All Blacks arrives on Amazon Prime Video
Posted 2-Jun-2018 16:21


Innovation Grant, High Tech Awards and new USA office for Kiwi tech company SwipedOn
Posted 1-Jun-2018 20:54


Commerce Commission warns Apple for misleading consumers about their rights
Posted 30-May-2018 13:15


IBM leads Call for Code to use cloud, data, AI, blockchain for natural disaster relief
Posted 25-May-2018 14:12


New FUJIFILM X-T100 aims to do better job than smartphones
Posted 24-May-2018 20:17



Geekzone Live »

Try automatic live updates from Geekzone directly in your browser, without refreshing the page, with Geekzone Live now.



Are you subscribed to our RSS feed? You can download the latest headlines and summaries from our stories directly to your computer or smartphone by using a feed reader.

Alternatively, you can receive a daily email with Geekzone updates.