Enduring Powers of Attorney – Important Law Changes in New Zealand

Do you have Enduring Powers of Attorney in place? If not, you may care to read on to see what could be a likely scenario in the event of your losing mental capacity for any reason, be it old age or an unforeseen accident or illness.

Firstly, you might ask “What is an Enduring Power of Attorney?” Pursuant to an Act of Parliament called ‘The Protection of Personal and Property Rights Act 1988′, every person is able to put in place types of power of attorney known as Enduring Powers of Attorney. These powers of attorney come in two forms, one for personal care and welfare and a second, for property matters. In relation to our personal care and welfare, we can only appoint one attorney at any given time, but in relation to our property matters, we can appoint two or more if so desired.

The distinct difference between these types of power of attorney and a ‘traditional’ power of attorney is that as the word ‘Enduring’ suggests, the Enduring Power of Attorney remains in full force and power if for any reason we lose mental capacity. Any other type of power of attorney ceases to be of effect on loss of mental capacity.

If you are thinking that you’ve heard all this before, you might care to stop and think for a moment, what happens if you lose mental capacity for any reason and you do not have Enduring Powers of Attorney in place! The Protection of Personal and Property Rights Act anticipates this situation, and provision is made in the Act for an application to be made to the Family Court for someone to be appointed as either a personal welfare guardian or a property manager.

However, whereas it might cost you around $400 – $500 per person to put in place Enduring Powers of Attorney for property and personal care and welfare whilst you are of sound mind, if application has to be made to the Court, following your sudden or unexpected loss of mental capacity, the costs are likely to be dramatically higher. Why is this and how much could it cost you might ask?

The simple answer is that it can cost several thousands of dollars to put in place arrangements, which could have been made for a fraction of that price with a little foresight. The reason for this is that in circumstances where an application to the Court is necessary, not only do you have a solicitor representing the person making application to be appointed as welfare guardian and/or manager, but there is also an independent solicitor appointed by the Court to represent the person for whom the power of attorney is required. A percentage (usually half) of that independent solicitor’s fees are usually met from a Government Consolidated Fund, but the remainder must be paid out of your own funds.

Before making an appointment as welfare guardian or manager, the Court must be satisfied that there is a genuine loss of mental capacity and it is necessary to seek medical opinions and a report is then filed with the Court by the independent solicitor. If the manager is to have the ability to deal with property in excess of $120,000 in value, this requires the consent of the Court also.

Sadly, the expense does not necessarily stop once an order of the Court is granted, as the orders for appointment of manager and/or welfare guardian must be reviewed in the Court every three years, requiring the same process to be followed once again and further costs are incurred.

Because the costs involved in having a manager and/or welfare guardian appointed by the Court are considerable, there can sometimes be circumstances where it may not be appropriate to incur the expense. Take for example a situation where there is an obvious loss of mental capacity but the person does not have any significant property in their name. It might be argued in those circumstances that it ought not to be necessary to apply to the Court to have a welfare guardian appointed, particularly where there is a surviving spouse or partner.

Changes To Protection of Personal and Property Rights Law

Effective from the 26th of September 2008 significant changes to the law dealing with Enduring Powers of Attorney have come into effect.

The Enduring Power of Attorney regime first came into being with the passing of the 1988 Protection of Personal and Property Rights Act.

Over time limitations with this legislation became apparent with occasional abuse of the power of attorney by attorneys. Furthermore, upon loss of mental capacity by the Donor, there was no reporting requirement on the attorney.

In 2001 a report was published by the Law Commission which highlighted a number of potential areas of abuse of Enduring Powers of Attorney including:-

• Insufficient protection for the donor when making an Enduring Power of Attorney, particularly in relation to a donor not being properly advised when signing.

• Attorneys failing to consult with a donor to protect the interests of the donor.

• The fraudulent use of Enduring Powers of Attorney.

In 2007 an Amendment Act which modified the original Act in certain areas was passed and new prescribed forms came into effect on 26 September 2008. Some of the significant changes to the Act and the focus of the Enduring Powers of Attorney are as follows:-

• The Donor of the Enduring Power of Attorney must now have his or her signature witnessed by a solicitor or registered legal executive and the witness must be independent of the attorney. Therefore, if a lawyer acts for a husband and wife and they wish to appoint each other as attorney, then the Donor will need to be referred to another firm for independent advice. Whilst this will lead to increased costs, the hope is that the new requirements will lead to better protection for Donors at the time of appointment of an attorney.

• The new prescribed form for the appointment of a property attorney contains certain options which did not form part of the old forms.

• One such option is for the appointment of a successor attorney where the appointment of an attorney has ceased.

• Another option allows for the donor to require the attorney to consult with certain specified people in exercising their power – these might include a spouse or other siblings where one of your children is appointed as your attorney.

• The Donor can also require the attorney to provide specific information relating to the exercise of the Enduring Power of Attorney to a nominated person or persons if those people request such information.

• If the Donor wishes the attorney to be able to benefit themselves or other specified persons after the donors loss of mental capacity this can also be specified in the Enduring Power of Attorney.

The Amendment Act also places a requirement on the witness to sign a certificate certifying that they have witnessed the execution of the Enduring Power of Attorney, they are either a practicing lawyer or registered legal executive, that they have explained the effect and implication of the Enduring Power of Attorney and that the Donor had mental capacity when they signed the form.

Notwithstanding that the new requirements will lead to increased costs, an Enduring Power of Attorney is a valuable document. The alternative if one loses mental capacity and does not have an Enduring Power of Attorney is an application to the Family Court and likely cost about $2,000 – $3,000.

Criminal Law: A Critical Evaluation of Murder

Introduction

Murder is not provided for in any statute in England or Wales, with its definition emanating from case law. The definition of murder can be broken down into two elements, mens rea and actus reus. This brief article will focus on these two elements of murder. Firstly, a brief insight into the two concepts will be needed. This will equip the reader with the relevant understanding for the more critical part of this article, that being the evolution of these two concepts. Lastly, this article will focus on the future of the definition of murder, focusing on proposals for a more appropriate definition of the crime of murder.

Actus Reus and Mens rea

The concept of actus reus focuses on the act of all criminal offences, not just murder. As stated in the introduction, the actus reus of common law offences will be provided by the case law. The act itself will not constitute an offence. There must be a mental element to a crime; this is known as mens rea. An example of this would be simply falling over a dog and kicking a dog. Whilst the act will be the same, and indeed the result, it is the intention that changes the circumstances into a criminal offence.

The concept of mens rea refers to the mental element of any crime. This definition can change from crime to crime. The main contributory to most crimes will be that of intention per the example above. If these two elements exist, then a criminal offence will have been committed.

Evolution of the two concepts

The first definition of the actus reus for murder was give by Coke as ‘unlawfully killing a reasonable person who is in being and under the kings peace’. This definition emanated from the 17th century and was not equipped to deal with medical advances the followed the inception of this definition.

The most problematic limb of this two part definition is mens rea. Most of the literature that has addressed this area has focused on the definition of intention, and more importantly, the foresight of a person accused of such a crime. An example of this would be the classical illustration given in most text books. Here a person wants to blow up a plane. The accused contends that that was his only aim, his only intention. However, the plane is full of people on board; if the plane explodes then the people on board will be killed. A persons foresight of their actions, therefore, plays a crucial role. The case law on the area of mens rea has been extensive, with a definition finally being settled upon in a House of Lords case. (It is not in the scope of this brief article to explore the area fully, although the citation for this case is R v Woolin 1996).

Proposals for the Future

The Law Commission has proposed a definition for the mens rea element, although this has not been followed up. A more recent proposal has been put forward by the Nathan Committee, although this only slightly alters the law at the present moment, although the calls for a more purposeful definition that is provided by statute seems more distant than ever.

Conclusion

As has been shown by this brief article, the offence of common law murder is an extremely complicated area. The initial elements are based in Latin and have there foundations in the 17th century. The evolution of these two concepts has been slow and cumbersome; leading to accusations that the only reason for this is that the subject is too emotive. Although the definition is now more settled, this area is crying out for a definition provided for by statute similar to that provided for in the United States.

Qualities of an Ideal Legal Translator

Nowadays, your own country seems too insufficient for the satisfaction of your cultural, educational, artistic and even legal knowledge. It is true that many people have their eyes on your legal system and the laws that bind and free your people. They could be from other countries or even from the same country with different languages. If it is not the access to the legal study, then it is the language that poses a problem. In some situations, it can become crucial for you to be crystal-clear about the laws of a place, especially in international scenario. A mistake in interpreting a country’s law can lead to major consequences for the involved parties and the translator, as well. An ideal legal translator is judged by the following qualities -

* Focus on the language – Remember that the process of translation is ultimately about the language in the original document and the one, it is being translated to. If the translator does not get the language part right then he/she should not be in this field. The language does not, by any means, include a word-for-word translation. The significance of the text should shine clearly through the translation, along with the cultural connotations. It is vital because that could change the whole meaning and lead to legal penalties.

* Be Versatile – The broader your knowledge spectrum, the better you are suited for legal translation. Your versatile knowledge will be more useful in a lot of legal aspects than the specialized one in just one area. You should have deep understanding of the clients, their needs and know about the little but crucial aspects of the case during the period when you consult with the client. You should be able to make productive judgment calls. Translators comprehend cases minutely from every aspect including language, style, tone, subtext, etc, so that its essence does not slip by. Translators do not need to win a case or possess qualities to make one.

* Legal plus administrative skills – Background employees in the legal circles are often ignored, when they are actually the ones who are hard-working and efficient at the administrative side of this job. Big-shot lawyers with a fluent tongue can be inappropriate for this job, because this job is for the people who are not looking for attention, are excellent at creating networks and can deal with a lot of data and long working hours.

Translation services have reached new heights in efficiency, accuracy and sensitivity to other’s culture and dialects. The amount of skills a legal translator should have is complex, intricate and has a broad-based spectrum. This is because he is simultaneously part of two professions; law and translation, which demand curracy and balanced thought. This, combined with other required skills, becomes a challenging job.

Online Degrees – Fields of Study

With online universities becoming more and more popular, it is now more convenient to earn a college degree. And with online degrees, gone is the excuse that the degree you want is unavailable at your local college or university. Online universities wipe away state borders and eliminate the need to pack up and move close to a campus college to earn a degree. In fact, there is such a wide range of online degrees available that the problem won’t be where to go, but what online degree to pursue. Here are some of the online degrees that are available today.

Online Art and Design Degrees
Online art and design degrees include online degrees such as computer graphics and design, fashion design and merchandising, game design and website design and development. As companies have in-house design teams, people with computer graphic expertise continue to be in demand. If you have a passion for visual arts and want to learn how to communicate company message through your designs, then art and design is the direction for you.

Online Business Degrees
Online business degrees include online degrees such as accounting, business administration, business management, communications, finance, human resources, international business, management information systems, marketing, and of course, the MBA. As the economy thrives on businesses, online business degrees are very versatile and useful in every industry.

Online Computers and Engineering Degrees
Online computers and engineering degrees include online degrees such as computer programming, computer science, information technology, network management, and software engineering. If you are looking for job stability, then a degree in computers and engineering is the way to go. At the speed that technology continues to advance, those with technical expertise will continue to be highly sought after.

Online Criminal Justice and Legal Degrees
Online criminal justice and legal degrees include online degrees such as criminal justice, homeland security, legal studies and paralegal. If you have an enthusiasm with law enforcement, then criminal justice and legal would be your path. Whether you want to join the ranks of your local police department or work in a court, there is an online criminal justice and legal degree for you.

Online Education Degrees
Online education degrees include online degrees in education and teaching. Whether you want to teach children in kindergarten or prepare high school students for college entry, you need to learn how to prepare class syllabuses and develop curriculum.

Online Health and Human Services Degrees
Online health and human services degrees include online degrees such as health care administration, health education, health science, human services, medical assisting, RN to BSN and sports management degrees. There will always be a need for healthcare workers. From nurses working in hospitals to sports coaches working for high school sports teams, those with the knowledge and background to care for people will always be needed.

Online Social Science and Psychology Degrees
Online social science and psychology degrees include online degrees such as economics, fire science, history, political science, psychology, and sociology. If current events intrigue you, then the social science and psychology field is the way to go as you will learn insights to explain the behavior of people, whether it be one individual or a collective group.

Online Degrees in Every Field
As you can see, online degrees are available in almost every field. Whether you want to enter the field of business, teach high school students, or design video games, your online degree is waiting for you. Start your online degree search today!

Online Degree Program – Earn A Degree In Paralegal Studies

Paralegals work for attorneys, assisting the lawyers and legal advisors in substantial legal works. Paralegals are the persons who are trained to handle legal issues, prepare, review and file the legal documents. As the need for qualified paralegals continue to grow in conjunction with the increase of job market demands in private practice law firms and corporate law departments. If you are interested to start your career in Paralegal field, you will be opened to many paralegal career opportunities after you earned the qualified degree. With the available of online education, you have option to earn a paralegal degree through online degree program.

A certification in legal studies will help you enter the paralegal field, but if you own a bachelor of science in paralegal studies, it will increase your chances of securing a paralegal job opportunity against your competitors. You have two options to earn your credential in paralegal: (1) on hold your current job and go back to school to study paralegal courses, or (2) pursuing the paralegal degree online through online degree programs and maintain your current job and life style. Both options cover almost the same curriculum that emphasizes critical thinking skills, legal research techniques and advanced office skills. Besides learning the basic knowledge in legal research and writing, business law and alternative dispute resolution, you can choose to specialize in areas such as personal injury, estate and property law or bankruptcy.

Unless you prefer to attend physical class, online study has advantages against the traditional class-based courses in term of flexibility and convenient in learning. The best part of online degree program is you don’t have to rearrange your life to go back to school, meaning that if you are a working individual, you do not need to give up your current job while you are pursuing the paralegal degree online. As long as you do a proper time management, you can balance your study with professional and family obligations.

Most online degree programs are taken into consideration for the busy schedule of working individuals, that’s why the online study programs allows the most flexibility for you to plan your own study time so that it fixed into the rest of your schedule. With the online education, geography factors can be ignored when you are considering a degree of your interest. You almost can attend the online classes from anywhere even if you are on travel to other country, provided you have connection to internet.

The geography-less online degree program will enable you to take the paralegal degree program offered by any university as long as the university has classes located on the internet. There are many universities offer online degree programs in legal studies including University of Phoenix, Kennedy-Western University, Kaplan University, Devry University International, Walden University, Keiser College and University of Maryland University College. The only thing you need to be aware before beginning your studies online, make sure the program is accredited.

Summary

Paralegal field is a rapid growth area with full of career opportunities for those who are interested to enter the field. Earning a qualification in paralegal studies will increase your advantages in securing your career future. And, online degree program gives you a highly personalized option to balance your current living style with your study.