Power of Attorney Guide
At Heartland we are proud to have helped over fifteen thousand New Zealand seniors live a more comfortable retirement with our reverse mortgage. We aim to provide customers with peace of mind and have a culture that places significant importance on the duty of care we have for every customer.
Subject to Heartland’s assessment and approval, our loans may be signed for by a Power of Attorney (POA), this is to act as an ‘agent’. They also may, after settlement, commence acting on behalf of a customer. However, Heartland takes extra care when assessing and approving loans under Power of Attorney to ensure that they are suitable.
A downloadable copy of our Power of Attorney Guide is also available.
This guide does not constitute legal or professional advice. If you require assistance you should obtain independent legal advice.
General Power of Attorney
This operates for a particular period of time or purpose. It is generally used to put a temporary formal arrangement for a specific purpose in place, or a period of time (for example, if you go overseas for a year a family member may take care of your bills). Unless specifically noted, it will not be valid for a lack of physical or mental capacity.
Enduring Power of Attorney
An enduring power of attorney can commence once the attorney has accepted his/her appointment or at a later time specified. This type of authority remains valid even when the customer may no longer be capable of making their own decisions (i.e. lack of capacity). It is possible for an enduring power of attorney to specifically state that it is to take effect when capacity is lost (evidence of this may be required), or to be triggered by another event.
- the customer lacks mental capacity or cannot physically sign for themselves; and
- funds will benefit the Nominated Borrower.
Each party to the loan must be on boarded and vetted, this means we will need to confirm details regarding the customer agent, including their identification.
The loan purpose will always be assessed. Funds can only be paid into account in the name of the Nominated Borrower, to their lawyer, or to a debtor on their behalf.
Gifting will not be accepted as a loan purpose for a loan signed for by a customer agent.
Heartland will also require a Letter of Comfort from the lawyer providing the independent legal advice. This must confirm:
- funds are for benefit of Nominated Borrower(s);
- reason why they cannot sign; and
- the power has not been revoked.
Depending on the document, Heartland’s legal advisers may be required to review its terms prior to loan document issue.
Under an enduring power of attorney, it is most likely to be the attorney who will decide when the donor loses capacity. For this reason, Heartland requires the lawyer completing independent legal advice to certify that the customer cannot sign in our Letter of Comfort.
However, only a medical practitioner can give a professional opinion on whether someone has lost capacity to make their own decisions. In some cases, the power of attorney may only come into effect if evidence is provided by a medical practitioner. If in doubt (of capacity or lack thereof) Heartland’s process is to request a medical certificate.
- Jointly: means that all must agree to decisions and every document must be signed by all POA’s listed.
- Jointly and severally: means that any POA listed can make a decision and sign documents, either together (jointly) or without the others as an individual (severally).
- If a POA has passed away, a certified death certificate will be required.
Even if a POA is jointly and severally, Heartland will require confirmation that all POA’s are aware of the application.
- whether it is general or enduring;
- that it is for Financial matters;
- the commencement date and duration of appointment;
- if general, if it covers loss of capacity;
- that it has been formally signed, accepted and witnessed; and
- any specific conditions or restrictions (i.e. does not include sale of property).
Heartland will only allow a POA which includes financial purposes, and allows the security property transaction.
- act in the donor’s best interests, except as otherwise noted specifically in the POA;
- make the same decision that the donor would make;
- keep accurate records of interactions, transactions, and keep these separated from their own assets; and
- avoid any conflict of interest.
An attorney must not exceed the POA document’s authority, if they do so they may be liable for any damages suffered by the donor.
If you are looking to be added to the account post settlement, please contact Heartland’s Customer Care team for our Customer Agent Application. This will allow Heartland to set up the Power of Attorney in the loan details and provide information in the future. A Certificate of Non Revocation will be required when the attorney liaises with Heartland in regards to a reserve mortgage.
If an application includes any red flags, our team will ask further questions and follow our Elder Abuse Guide to ensure that the loan is not unsuitable.
Important notice: This information has been prepared without taking account of the needs, objectives, or financial situation of any particular individual. Applicants should consider their own circumstances and, if necessary, seek professional advice. Applications are subject to loan approval criteria. Terms, conditions, fees and charges apply. Please note the information set out in this guide may change from time to time.