Can an attorney under and enduring power of attorney (EPOA) exercise settlor powers?
The starting point is the terms of the trust instrument. The law prior to the Trusts Act was clear that an attorney under an enduring power of attorney (EPOA) could not exercise powers of appointment. The Trusts Act now permits this in certain circumstances.
If an EPOA permitted the exercise of settlor powers (and subject to the Trust terms) this may be permissible – but depends on whether the powers are property rights. In Godfrey v McCormick [2017] NZHC Nation J said at[9]:
However, the above statement appears to conflates property held as a trustee with whether there are property rights in powers.
The fact that a power may have fiduciary obligations does not of itself bar a finding that there is a property right. However, the fundamental question is whether a power to appoint or remove a beneficiary is property for the purposes of the Protection or Property and Personal Rights Act 1988 (PPPR). This is addressed by Nation J at [19] in Godfrey v McCormick:
In Boston Trustees 3131 Limited v Chapman Gordon J raised no issue with appointor powers being exercised by the Settlor’s attorney. See [5]:
A judicial determination regarding whether the definition of property for the purposes of the PPPR is required to put the matter beyond doubt, property being defined in the PPPR in section 2 as:
References:
- Boston Trustees 3131 Limited v Chapman [2019] NZHC 1801
- Marshall Family Trust [2017] NZHC 472
- Godfrey v McCormick [2017] NZHC 420
- Cooper v Pinney [2023] NZCA 62
Matters of Trust 
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