September 2017: Trusts and Powers of Attorney
New content in CCH iTrust!
This month, we have added some new documents to CCH iTrust
- EPOA01 Enduring Power of Attorney – personal care + welfare
- EPOA02 Enduring Power of Attorney – property
- EPOA03 Certificate of witness to donors signature on Enduring Power of Attorney (use with EPOA1 & EPOA2)
These are the same templates you will find available on the Ministry of Social Development website but in an easier to use format.
- Checklist 38 Enduring Power of Attorney – personal care + welfare
- Checklist 39 Enduring Power of Attorney – property
The enduring power of attorney documents are long and complex so use these new checklists to make sure you have all the information you need before you start. The checklists can be used with our version of the enduring power of attorney documents or those you will find on the Ministry of Social Development website.
- DEED 40 Power of Attorney (Property) and Deed of Delegation
- DEED 41 Power of Attorney (Property with rental option) and Deed of Delegation
For more information on ordinary and enduring powers of attorney, please refer to the section "Trusts and Powers of Attorney" below:
Trusts and Powers of Attorney
Ordinary power of attorney
A power of attorney is a useful tool when a trustee is temporarily unable to perform his or her duties if this is a result of being either:
- out of the country; or
- physically incapacitated.
A trustee granting an ordinary power of attorney in these circumstances allows the trust to be managed and carried on in their absence.
Enduring power of attorney
An enduring power of attorney (EPA), by contrast, cannot generally be used to delegate a trustee’s duties. An EPA is used for the proactive management of a person’s affairs in the event of mental incapacity. Granting an EPA does not give the attorney the power to step into the shoes of the incapacitated person and act as trustee in relation to the trust property.
The recent High Court decisions of Godfrey v McCormick (2017) 4 NZTR ¶27-005 and Re Marshall Family Trust & Hetrick (2017) 4 NZTR ¶27-006 confirm the limitations of an EPA in the trust context. An EPA cannot be used as a shortcut to removing a trustee in the event of mental incapacity (Godfrey). Nor can an EPA be used to exercise a power of appointment and to appoint a new trustee (Re Marshall Family Trust).
The new Trusts Bill, as currently drafted, represents a shift in the law. In confined circumstances, a person holding an EPA is given the power to appoint and remove a trustee. See clause 86 of the Trusts Bill.
CCH iTrust New Developments & Updates
**IMPORTANT UPDATE FOR ALL USERS**
The CCH iTrust site has been upgraded and is ready for you to use. Please access your CCH iTrust using https://cchitrust.com.
www.cchitrust.com is still active but does not have the same enhanced security features as https://cchitrust.com. We will be deactivating www.cchitrust.com at the end of August so please switch to the new URL as soon as possible. Remember to update all your bookmarks and shortcuts.
If you have any difficulties accessing the software on the new link please make sure you have updated your firewall settings to make https://cchitrust.com a safe or trusted site.
XERO interface now live
If you have a contact database in Xero we can now link that to your CCH iTrust (and CCH Companies) data. Please contact your account manager for more information.
If you would like more information about our CCH iTrust Training, please contact Suzy Hardy: suzy.hardy@wolterskluwer.com or 021 703 272.