Attorneys’ duties under enduring powers of attorney
Kevin Callinicos • 14 December 2016

A recent judgment issued by the Court of Appeal has clarified the duties of an attorney under an Enduring Power of Attorney (“EPOA”) in relation to Property, particularly in circumstances when the donor (i.e. the person giving the power to the attorney), is mentally capable.
The case is ­Vernon v Public Trust [2016] NZCA 388. The essential facts are these:

  1. Kenneth Vernon appointed his son Ashley Vernon his attorney under an EPOA in relation to Property.
  2. Kenneth was aged 86 in March 2006, when his wife Naomi died. Following his wife’s death, Kenneth lived with Ashley and his wife, Beverley (“the Vernons”) until 2008, when he went into a rest home.
  3. When Kenneth went to live with the Vernons, his assets amounted to about $329,000.00.When Kenneth moved into the rest home, his assets had been reduced to $11,000.00. During that time, Ashley had controlled Kenneth’s bank accounts using the EPOA.
  4. Kenneth’s Will divided the balance of his Estate equally between Ashley and Kenneth’s grandson, Dante (being the only child of Kenneth’s other son, Chris, who had already died).
  5. Following Kenneth’s death in 2011, the Public Trust was appointed as replacement administrator of his Will. In 2014, the Public Trust issued proceedings in the High Court against the Vernons to recover the funds withdrawn from Kenneth’s account, alleging that Ashley had misapplied them for the joint benefit of him and Beverley. The Vernons denied liability and the claim went to trial.
  6. In the High Court, Justice Kós found that Ashley had exercised undue influence over Kenneth in obtaining Kenneth’s consent to the majority of the bank transactions, and found in the alternative that the transactions constituted a breach of Ashley’s fiduciary duty owed to Kenneth and on the grounds on unconscionability.
  7. The Vernons appealed to the Court of Appeal.
  8. The Court of Appeal decided that:
  9. The High Court decision could not be sustained on the grounds of “undue influence” because, once the Judge found that the transactions did not occur with Kenneth’s consent, it could not be said that the consent was obtained by “undue influence”.
  10. However, the Court of Appeal sustained Justice Kós’ alternative finding that Ashley’s actions constituted a breach of fiduciary duty and were unconscionable. The Court rejected the Vernon’s argument that the Protection of Personal and Property Rights Act 1988 was a code and that the fiduciary duties could not be implied.
  11. However, the Court of Appeal rejected that submission where the donor is not mentally incapable.Under an EPOA the donor appoints the donee to be the donor’s agent or attorney. Although, an EPOA is created by the Act which prescribes certain powers, that does not exclude the imposition of equitable obligations.Equity imposes enforceable duties on an agent. Fiduciary obligations are a necessary incident of the relationship of principal and agent.
  12. As a result, the Court of Appeal found that Ashley owed Kenneth fiduciary duties whenever he exercising his powers under the EPOA, and that in these circumstances, Ashley had used his powers for improper purposes (to financially benefit himself and his wife), and this was directly contrary to Kenneth’s property interests.
  13. As a result of this decision, it is clear that the duties owed by attorneys to donors under an EPOA are more than those expressly stated in the Act and/or the power itself, but are, much like trustees, fiduciary duties which include the duty to act openly and fairly, to exercise reasonable care in managing the financial affairs, to keep personal and fiduciary property separate and to avoid conflicts of interest.

Join our Newsletter

Stay tuned

Contact Us

29 July 2026
Buying your first home? We've helped hundreds of people through this exact process. Our free First Home Buyers' Guide covers everything you wish you knew before you started.
5 July 2026
We're pleased to shine a light on Harry Calcott, a solicitor in our Property Team. If you've worked with Harry Calcott , you'll know he has a knack for making complicated processes feel straightforward. As part of our Property Team, based in our Hastings office, Harry guides clients through some of the biggest moments of their lives, and he brings genuine care to every step of the way. Although, Harry didn't set out to be a property lawyer. The plan, when he graduated with his Bachelor of Law and Commerce, was criminal law. He spent time as a law clerk with the Public Defence Service, a grounding experience that gave him an early look at the realities of legal practice, but somewhere along the way, something shifted. "I realised I was drawn to helping clients through positive milestones rather than difficult disputes," he says. The work of guiding people through important life events, buying a home, planning for the future, felt more like where he was meant to be. His commerce background turned out to complement property law naturally, and what might have looked like a change of direction began to feel inevitable. Sometimes the path surprises you. For Harry, one of the most rewarding parts of the job is sitting across the table from a first home buyer. He knows the process can feel overwhelming, and he's deliberate about making it feel anything but. "I try to provide as much information and reassurance as possible to make the process straightforward and stress free." What keeps it meaningful, he says, is the people themselves, the excitement and optimism that first home buyers bring with them is something that never gets old. "It's a privilege to be part of such an important milestone in their lives." Harry made the move from Wellington to Hawke's Bay to join the Willis Legal team, and by the sound of it, he's settled in well. If you're visiting him in the region, he'll take you to Sutto for the eggs benedict or Kami for sushi, then walk you around Windsor Park. It's a low-key itinerary that suits him; good food, fresh air, no fuss. The weekends follow a similar pattern. Good food, sport, time outdoors when the weather allows, and getting organised for the week ahead, plus the odd trip back to Wellington to visit friends and family. For someone who spends his working days helping clients prepare for the moments that matter most, a little structure away from the office clearly goes a long way. Harry is a solicitor at Willis Legal. If you're buying your first home, planning for the future, or simply want someone in your corner who'll make the process feel manageable, get in touch with us today.
2 July 2026
People often get confused by the way we lawyers speak. Part of our job is to communicate with you in a way you understand, not to sound smarter than we are. We try our best to break it down in a way that you can understand, but sometimes we can’t avoid it, especially when the jargon comes from a contract, legislation, or Land Information New Zealand requirements. Knowing what these terms mean is important to ensure that you understand your options and rights, a deadline is not missed, or you do not walk out of a meeting expecting a different outcome. It does not help that some of our jargon is different to America and what you see on television. I asked my friends and family what terms they hear me using and think “I have no idea what you are on about”, and I have collated them and translated them. These are just a few examples. Contact one of our esteemed legal professionals if you have any other specific questions for a breakdown. Legal jargon and their translation Client The individual or entity receiving legal advice or representation. Solicitor/Barrister A person who has completed the educational qualifications and character requirements to be admitted to the “bar and holds a practising certificate”. Generally referred to as a lawyer. In New Zealand, unlike in some other countries, all solicitors are also barristers. Caveat A formal notice lodged on a property title to protect your interest in the property. It acts like a flag on the property title, preventing the registered owner from doing anything with the property until the caveat is removed. Intestate When someone dies without leaving a valid will. Memorandum A formal written document that is filed in court proceedings, used to talk to a judge, generally setting out your position or proposed next steps. Often referred to as a memo. Probate The legal process of obtaining a grant from the High Court of New Zealand to allow the executor to administer the deceased's will. This application is only required if the deceased has one asset valued at more than $40,000. Attorney A person you appoint to make decisions and/or manage your property on your behalf. This can either be from the date you sign your Enduring Power of Attorney documents or come into force once you lose capacity. In America, an attorney is a qualified lawyer. Executor The person named in a will who is responsible for administering and distributing the estate. Deed A formal written document that is signed and witnessed in a particular format. A Deed, unlike a contract, does not require each party to give or promise something in return(consideration). Common types are a Deed of Trust or a Deed of Lease. Affidavit Your written statement of facts is used as your evidence in legal proceedings. By signing, you swear (on the bible) or affirm (make a solemn declaration) that the contents are true. Purchaser The party buying the goods or services from another party. Vendor The party selling the goods or services to another party. Tenants In Common A way for two or more people to own property together in defined shares. Record of Title The land record that proves ownership of land and the rights and restrictions that apply to the land. Chattels Moveable items of personal property. Things you can pick up and take with you. Conveyancing The legal process of transferring property ownership from a seller to a buyer. Counsel The lawyer providing the legal advice and representation in court. Covenant A legally binding agreement against your property title that dictates how you can use, develop, or maintain your land. Disclosure The legal obligation to provide all relevant information and documents to another party. Written by: Laurel Williams
Show More