Signing and witnessing EPAs during COVID-19

Epidemic Preparedness (Protection of Personal and Property Rights Act 1988—Enduring Powers of Attorney) Immediate Modification Order 2020

This information outlines the effect of the Immediate Modification Order on the requirements for signing and witnessing enduring powers of attorney. It is not intended as legal advice.

In light of the COVID-19 epidemic, the Government has made a temporary law change to modify the requirements for signing and witnessing enduring powers of attorney under section 94A of the Protection of Personal and Property Rights Act 1988.

This note provides information for people signing and witnessing enduring powers of attorney while the COVID-19 Epidemic Notice is in force.

What is an Immediate Modification Order?

Immediate Modification Orders (IMOs) are issued under section 15 of the Epidemic Preparedness Act. IMOs are considered and agreed to by Cabinet and take the form of Orders in Council.

IMOs cannot be used to substantially rewrite parts of the law. They can only be used where there is a statutory requirement or restriction that is impossible or impracticable to comply with, or comply with fully, during an epidemic.

What changes does this make?

This change amends section 94A of the Protection of Personal and Property Rights Act 1988, which sets out signing and witnessing requirements for enduring powers of attorney. This change comes into effect on 24 April 2020 and applies to EPAs made between that date and the end of the Epidemic Notice.

An Enduring Power of Attorney (EPA) is a legal document which sets out who can take care of your personal or financial (property) matters if you can't. That person is called your attorney.

You can set up an EPA through a lawyer or trustee corporation.

This change allows EPAs to be signed and witnessed using audio-visual links (for example, Zoom, Skype, Facetime, etc.) where normally they would need to be signed and witnessed in person. 

The change clarifies that all the following ways of witnessing can be done by audio-visual link:

  • Authorised witnesses can witness the donor (or a person directed by the donor to sign on the donor’s behalf) sign a copy of the document by audio-visual link.
  • The donor can observe a person, who they have directed to sign on their behalf, sign a copy of the EPA by audio-visual link.
  • Authorised witnesses can witness the attorney, or attorneys, sign a copy of the document by audio-visual link.
  • Authorised witnesses can sign a copy of the EPA in front of the donor by audio-visual link

All people signing a copy of the EPA must make it clear on the copy that it is signed this way because an Epidemic Notice is in force.

Photographs or scans of the signed copies must be sent as soon as practical to a person who has been chosen to hold the EPA. If a lawyer or trust company has been involved in preparing and witnessing your EPA, they can hold the document and all photographs or scans of signed copies of the EPA.

The changes made are temporary. The modification order will expire after the Epidemic Notice is lifted, and the law will return to normal.

Why did the law need to be modified?

It is important that people are able to make an EPA while the Epidemic Notice is in force.

During a lockdown period it is impossible for donors, attorneys, and authorised witnesses to sign and witness an EPA in person without breaching the conditions of Alert Level 4 lockdown. Even if a lower alert level applies, it is likely to be important for vulnerable people (those who are at higher risk of catching COVID-19) to remain isolated.

What do I do with the copy I have signed afterwards?

After you sign a copy of the EPA, you must take a photograph, or scan it, and send that to the person designated to hold the EPA (the physical document, and photographs or scans of all the signed copies) as soon as possible.

You may also send the physical document to the person holding the EPA by post or courier, especially if the photograph or scan is not high quality. 
All the electronic or physical copies need to be kept somewhere safe.

Do I need to make another EPA after the COVID-19 Epidemic Notice ends?

If you make an EPA while the Epidemic Notice is in force following the modified requirements for signing and witnessing, it is a valid EPA.

However, it is best practise for parties to sign the same copy of the EPA when it is safe to do so. It may be easier to use a single document later rather than showing that the multiple signed versions make up a valid EPA.

Can I sign and witness an EPA via audio-visual link after the COVID-19 epidemic ends?

This change only applies to EPAs made while the Epidemic Notice is in force. Once the Epidemic Notice is lifted, the law will return to normal.

What if I make an EPA and can’t get it signed and witnessed either in person or by audio-visual link because of the restrictions in place?

If you make an EPA while the Epidemic Notice is in force and you cannot get it signed and witnessed either in person or by audio-visual link because of the restrictions in place, you can get it signed and witnessed after restrictions have ended.

It is a good idea to let the people you want to be your attorney(s) and your authorised witnesses know that you intend for them to sign and witness your EPA after restrictions have ended and make it clear in the EPA that you cannot get it witnessed due to the Epidemic Notice. The EPA does not comply with the formal requirements until it has been signed and witnessed.

However, the Protection of Personal and Property Rights Act 1988 allows the Family Court to decide whether a document is an EPA including whether it has come into effect and the donor had the required capacity (i.e. was able to understand the nature and consequences of making an EPA) at the time the EPA was made.

What happens if I become mentally incapable of making decisions about my personal care and/or welfare before my EPA has been signed and witnessed – either via audio-visual link while the Epidemic Notice is in force or in person?

The Protection of Personal and Property Rights Act 1988 allows the Family Court to decide whether a document is an EPA including whether it has come into effect and the donor had the required capacity (i.e. was able to understand the nature and consequences of making an EPA) at the time the EPA was made.

The Family Court also has the ability to make personal and property orders for people who lack the mental capacity to make their own personal care, welfare, and property decisions. If you do not have an EPA, and become mentally incapable of making these decisions, your family or someone else can apply to the Family Court for an order to make decisions relating to your personal and/or property affairs and to protect your interests. The Court will choose someone to act on your behalf in these matters.

Where can I find more information about EPAs and how to set one up?

An Enduring Power of Attorney (EPA) is a legal document which sets out who can take care of your personal or financial matters if you can't. That person is called your attorney.

You can set up an Enduring Power of Attorney through a lawyer or trustee corporation.

The  forms you will need to use to set up an enduring power of attorney for matters relating to your personal care and welfare, and financial matters (property), are below.

The Ministry of Social Development website (external link)has more information about how an Enduring Power of Attorney works and how to arrange one.