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Enduring Power of Attorney helps in critical situations

It also helps protect your health and property

Matilda Castelino

Auckland, May 4, 2020

On or about October 2014, late at night, I received a phone call from my friend who is a press reporter at well-known newspaper in India.

Airline crew accident

She informed me that her Priest friend’s cousin, a crew member of Singapore Airlines, met with an accident in Christchurch.

She forwarded a newspaper link, which was said, “Five Singapore Airlines Crew members were involved in a road accident on Wednesday in New Zealand which left two of them seriously injured, according to the New Zealand Herald.” 

She further informed me that the patient’s relatives had no idea about her health condition and that the newspaper report was the piece of information available to them.

They tried to call the hospital many times, pleaded, however due to Privacy Law the hospital refused to provide any information. In fact the hospital also refused to acknowledge/identify the name of the person that was admitted in the hospital.

Another hospital admission

In May 2019, another friend rang up me from Mumbai and informed that her 26 year-old nephew was admitted to the Auckland Hospital in a critical condition.

The young man had studied Mechanical Engineering at AUT university and  was searching for a job in the field of his study.

His parents had no idea about his health condition as the hospital was not responding to their phone call enquiry. No one was able to provide details about his health conditions.

As a lawyer, I could not assist in the matter as I had no authority either from the patient or his authorised person. The stress, trauma and fear were terrible to carry until they arrived in New Zealand. Unfortunately, he passed away before they arrived.

In both situations, nothing could be done in the absence of appropriate authority due to the requirements of New Zealand’s Privacy Act 1993.

The term ‘privacy breach’ is often equated with a failure to keep information secure or inappropriate disclosure of personal information.

Thus, agencies are careful while providing information unless they verify the identity of the  person or their authority.

Information Privacy Principles

There are 12 Information Privacy Principles (IPPs) at the core of the Privacy Act.

These IPPs set out how agencies are to (a) Collect personal information (IPPs 1 to 4) (b) Store personal information (IPP 5) (c) Provide access to (IPP 6) and correct (IPP 7) personal information (d) Use (IPPs 8 and 10) and disclose (IPP 11) personal information (e) Only keep personal information for as long as necessary (IPP 9), and (f) Use unique identifiers (IPP 12).

Thus comes  the issue of “provide access” and “disclose personal information.”

People have the right to ask the agency to provide information held against them and also to correct information about themselves either personally or through their authorised agent which means that  they have given someone authority in that behalf.

Some exceptions

Agencies can only disclose personal information in limited circumstances such as (a) when another law requires them to disclose the information); (b) for court proceedings or the person concerned authorised the disclosure.

However, once a person loses his/her mental and/or physical capacity to make a decision without prior authorised any person to take care of such a situation, it is not possible for their representative to ask for disclosure or do anything on their behalf.

Your spouse cannot automatically act on your behalf.

In fact, you cannot act for your children once they are over 18 years of age.

In anticipation of such a situation, it would be appropriate to authorise someone when you are unable or incapable to make your decision about your personal or property matters.

Enduring Power of Attorney

Enduring Power of Attorney is the only effective method that would come to the rescue of a situation.

However, one has to require giving an Enduring power of Attorney when the person is capable of executing it. The Enduring Power of Attorney is only effective when the persons are incapable of taking decision about themselves or their property.

There are two kinds of Enduring Power of Attorney (EPA).

EPA specific to property: Your attorney will be responsible for managing any transaction that involves your property, including finances. 

EPA for personal care and welfare: Your attorney will be responsible for making decisions regarding your personal matters.

If a person loses mental capacity without an EPA, dealing with their matters or assets becomes increasingly difficult, added to which is the emotional and financial burden to their loved ones.

If nobody has the legal authority to act for a person or sign documents, their closest loved ones should apply to the Family Court to be appointed as their guardian.

It would however involve huge cost and stress.

if you have an EPA in place, a nominal fee between $150 to $175 would provide you considerable peace from untoward incidents that occur in our uncertain lives.

Matilda Castelino is Barrister & Solicitor in New Zealand and Mumbai. Email: matilda@castleviewlaw.com; Website: www.castleviewlaw.com

 

 

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