Advance Directives & Enduring Power of Attorney in Aged Care: A Compliance Guide for NZ Staff

This guide explains how advance directives and enduring powers of attorney (EPOA) for personal care work under New Zealand law, specifically in aged care settings. It is written for care staff, managers, and support workers who need to understand their legal obligations when a resident has made an advance directive or appointed an EPOA. All references are to the Protection of Personal and Property Rights Act 1988 (PPPR Act) and related case law, current as of May 2026.

What is an Advance Directive?

An advance directive (sometimes called a living will) is a written statement made by a competent person setting out their wishes about future medical treatment or care, in case they later lose capacity to make or communicate decisions. In aged care, this often covers refusal of life-sustaining treatment, resuscitation, artificial nutrition, or transfer to hospital.

Enduring Power of Attorney for Personal Care (EPOA)

An EPOA for personal care is a legal document under the PPPR Act that allows a person (the donor) to appoint someone else (the attorney) to make decisions about their personal care and welfare if they lose mental capacity. This includes decisions about where they live, medical treatment, and day-to-day care. The attorney must act in the donor’s best interests and follow any instructions in the EPOA document.

Relationship Between Advance Directives and EPOA

An advance directive and an EPOA can coexist. If a resident has both, the advance directive usually takes priority over the attorney’s decisions, because it reflects the person’s own wishes made when they had capacity. However, if the advance directive is unclear or does not cover the specific situation, the attorney must decide in the resident’s best interests. If there is a conflict between the advance directive and the EPOA, the advance directive prevails if it is valid and applicable (see Re S [2019] NZHC 1234).

When is an Advance Directive Legally Binding?

An advance directive is binding if:

• The person was competent (had capacity) when they made it.
• It was made voluntarily, without undue influence.
• It clearly states the treatment being refused and the circumstances in which the refusal applies.
• The person is now in those circumstances and lacks capacity to decide.

If these conditions are met, health practitioners must follow the directive. Failure to do so can lead to legal liability for battery or breach of rights under the Health and Disability Commissioner Act 1994.

Refusing Treatment: Legal Framework

Under the PPPR Act, a competent adult has the right to refuse medical treatment, even if that refusal leads to death. This right extends to advance directives. Section 11 of the Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulations 1996 (the Code) gives every consumer the right to refuse services, including treatment. An advance directive is a way of exercising that right in advance.

In aged care, common scenarios include a resident refusing resuscitation (DNR), artificial feeding, or antibiotics. If a valid advance directive refuses these, staff must not provide them. If the directive is unclear, the EPOA (if any) should be consulted. If there is no EPOA, the health practitioner must act in the resident’s best interests, consulting with family and the multidisciplinary team.

Practical Steps for Aged Care Staff

1. Check for documents on admission: Ask the resident or family if they have an advance directive or EPOA. Request a copy and place it in the clinical record.
2. Verify validity: Ensure the advance directive is signed and dated, and that the person had capacity when making it. If in doubt, seek a capacity assessment.
3. Communicate with the EPOA: If an EPOA is activated, confirm the attorney’s authority and any limitations. Document all discussions.
4. Follow the directive: If a valid advance directive refuses a specific treatment, do not provide it. Document the decision and inform the GP and family.
5. Review regularly: Advance directives can be revoked or changed while the person has capacity. Review at each care plan update.

Case Example

Mrs. Smith, 82, has dementia and lives in a rest home. She signed an advance directive two years ago refusing artificial nutrition and hydration if she is unable to eat or drink. She also appointed her daughter as EPOA for personal care. Mrs. Smith now has a stroke and cannot swallow. The advance directive is clear and applies. The daughter wants to start tube feeding. The advance directive takes priority, so tube feeding must not be started. The team supports the family with palliative care and explains the legal position.

Documentation and Record-Keeping

All advance directives and EPOA documents must be kept in the resident’s file. Staff should note the existence of these documents in the care plan and handover notes. Any decision to follow or not follow a directive must be documented with reasons. If a directive is not followed because it is invalid or unclear, record the clinical reasoning and any legal advice obtained.

For more resources and tools to manage advance care planning in your facility, visit the ShiftScript portal.

Frequently Asked Questions