Should you give someone power to make decisions on your behalf if incapacitated?

Community service providers say many Chinese households lack awareness about the benefits of setting up an enduring power of attorney, citing language barriers, cultural differences and a lack of awareness about New Zealand's legal system.

A power of attorney is a legal document that empowers someone to act and make decisions on another person's behalf if they become incapacitated and are no longer able to make decisions for themselves.

Two types of power of attorneys exist in New Zealand.

A property enduring power of attorney covers financial and property matters, while a personal care and welfare enduring power of attorney covers decisions about healthcare, accommodation and well-being.

Advocates say setting up an enduring power of attorney is arguably as important as a will, yet many in the Chinese community remain oblivious to its significance.

Audrey Yang, specialist trustee at Public Trust, recently partnered with Age Concern's ethnic community team in Auckland to present a series of Chinese-language sessions focused on enduring power of attorneys.

She said New Zealand's Asian population continued to grow, and yet significant gaps remained in reaching non-English-speaking communities with important legal information.

"There is an increased number of Chinese speaking customers who are approaching," she said. "They don't know that there is a document called EPA [enduring power of attorney] until they have been asked to provide one."

Yang noted that language barriers remained a major challenge for immigrants whose first language was not English, making it difficult for them to understand New Zealand's legal system, particularly when it involved complex legal terminology.

What's more, a household's cultural mindset was another significant obstacle preventing many in the community from engaging with New Zealand's legal system.

"We don't have a very strong attorney [system] in China," Yang said. "In many cultures, including the Chinese culture, there is a strong tradition of relying on close family members and made decisions in times of need."

"However, in New Zealand's legal system, informal arrangements in the families are not recognized by the authority and are insufficient to ensure the person's needs, wishes are properly carried out."

Yang said many Chinese seniors first learned about enduring power of attorneys only when asked to provide the document upon admission to a rest home.

"Rest homes usually require these EPA documents to ensure that someone is legally responsible for looking after the elderly person," she said.

"Chinese customers [then] come forward, questioning why it is necessary to have this document confirming that they already have existing family obligations and authority.

"I have to explain to them that this EPA formalized the charge that you already have in your parents by giving you the legal authority to make decisions for them."

Felix Lin, ethnic community and strategic planning manager at Age Concern Auckland, agreed.

He said cultural sensitivities made many ethnic families hesitant to discuss future decision-making, creating a major roadblock to setting up an enduring power of attorney before it was too late.

"This isn't just an issue in the Chinese community - it also affects other ethnic groups, including Indians and Koreans," he said. "When we suggest that elders set up these documents, they often feel it brings bad luck. They think, 'Nothing has happened yet, so why are you cursing me?'

"In Chinese culture, discussing topics such as future decision-making, death or xiao dao (filial piety) is often considered taboo, making it more difficult to engage families in EPA conversations."

Lin said Age Concern had worked with Chinese families who did not have an enduring power of attorney in place, leaving them vulnerable to difficulties.

"We had a case involving an elderly Chinese immigrant whose family member chose to return to China before Covid due to ongoing family conflicts, leaving them behind," Lin said.

"When New Zealand went into lockdown in 2020, they faced serious challenges," he said.

"The stress took a toll on their mental health, and they began showing signs of cognitive decline."

Lin said social workers from Age Concern intervened but found the person struggling to make clear decisions and express their needs, while their family member refused to return to New Zealand to assist.

By this time, their cognitive state had worsened, and they were no longer legally able to sign an enduring power of attorney, leaving them without a designated decision-maker.

"To ensure the client received proper care, our social workers applied to the court under the Protection of Personal and Property Rights Act to appoint a friend as a temporary decision-maker," Lin said.

"The process took over six months and required extensive medical and financial documentation.

"Although they were eventually placed in a rest home, their personal preferences - such as where they wanted to live - could not be considered due to the lack of prior legal arrangements."

Lin said elderly immigrants typically faced higher risks when they lacked family support, struggled with cultural adaptation and were unaware of their legal protections.

He said elderly individuals - especially those living alone - should be encouraged to set up an enduring power of attorney before it was needed.

Yang agreed.

"An EPA can only be set up while the person still has the capacity," she said. "If the person loses capacity (without a signed EPA), the individual taking on the role will need to go through a whole process to obtain an order (from the Family Court) granting them the authority, which is hugely time-consuming and costly."

Yang said the importance of enduring power of attorneys should be communicated to all ethnic groups in New Zealand.

"EPAs are important life documents," she said. "They give you safeguard of your life and make sure that you have the peace of mind, ensuring that things happen the way you want with minimal courses.

"It's not about replacing the cultural values that we have as Chinese," she added. "It's more about strengthening and protecting these values within the framework of New Zealand's legal system."