Resigning as Attorney Under an Enduring Power of Attorney in Victoria

What Does an Attorney Do?

An attorney appointed under an enduring powers of attorney in Victoria stands in the principal's shoes for the purposes set out in the document. Depending on the type of appointment, that may include financial decisions, personal matters, or both. The defining feature of an enduring appointment is that it continues to operate even if the principal later loses decision-making capacity.

In practical terms, the attorney's day-to-day responsibilities typically include:

• Managing finances — operating bank accounts, paying bills, dealing with Centrelink, superannuation and the ATO;
• Dealing with assets — managing investments, real estate, vehicles and insurance policies;
• Personal decisions — where authorised, decisions about where the principal lives, the services they receive and other aspects of daily life;
• Record keeping — keeping the principal's money and property separate from the attorney's own and maintaining accurate records of transactions and decisions; and
• Communication — keeping in contact with the principal where possible, and engaging with family members, professional advisers and care providers.

Throughout, the attorney must act honestly, diligently and in the principal's best interests, must avoid conflicts of interest and must act within the scope of the appointment. The role is demanding and, where the principal's affairs are complex, can take a substantial amount of time.

Can an Attorney Resign?

Yes. The Powers of Attorney Act 2014 (Vic) expressly recognises that an attorney can resign from the role. Appointment as an attorney is voluntary and continues to be voluntary — no-one is required to continue acting if they genuinely cannot, or no longer want to, perform the duties properly.

Two key principles sit behind the resignation rules:

• Protecting the principal — the law wants to make sure that an attorney does not simply walk away leaving the principal without anyone to act, particularly where the principal has lost capacity and cannot appoint a replacement themselves; and
• Recognising the attorney's position — the law also recognises that requiring a reluctant or ill attorney to continue is unlikely to serve the principal's interests either.

The Act balances those concerns by allowing resignation on notice while the principal still has capacity, and requiring VCAT's leave to resign once capacity has been lost.

Common Reasons Attorneys Resign

Attorneys step down for a range of perfectly legitimate reasons. The most common in Victorian practice include:

• Health issues — the attorney's own illness, hospitalisation or reduced capacity makes the workload unmanageable;
• Age — particularly where the attorney and principal are of similar age, the attorney may feel they can no longer keep up with the demands of the role;
• Family conflict — ongoing disputes with siblings, beneficiaries or the principal's other family members make it difficult for the attorney to act fairly and without constant criticism;
• Distance — the attorney has moved interstate or overseas and can no longer attend to practical matters in Victoria;
• Complexity of financial affairs — business interests, trusts, property portfolios or significant investments may have grown beyond the attorney's comfort zone;
• Time commitments — work, caring responsibilities or other commitments leave insufficient time to perform the role properly; and
• Concerns about co-attorneys — where joint attorneys cannot agree, or where one attorney has concerns about the conduct of the other, stepping down may be appropriate (and may itself raise issues of attorney abuse that should be addressed before resignation).

None of these reasons require justification to the principal or to a tribunal. What matters is that the resignation is given properly and in a way that protects the principal's interests in the transition.

How Does an Attorney Resign in Victoria?

The process for resigning depends on whether the principal still has decision-making capacity for the matters covered by the appointment.

While the principal has capacity. The attorney resigns by giving a signed written notice of resignation to the principal. The Powers of Attorney Act requires the notice to be in the prescribed form and to be signed in accordance with the Act. Although the statute sets the legal minimum, sensible practice is to:

• date the notice and keep a signed copy for the attorney's records;
• give the principal practical notice — enough time to put new arrangements in place rather than the bare minimum;
• identify any successor or replacement attorney named in the document and notify them as well; and
• notify the principal's bank, share registry, superannuation fund, accountant and any other institution that holds a copy of the enduring power of attorney so they update their records.

Once the principal has lost capacity. An attorney cannot unilaterally walk away. The Act requires the attorney to obtain leave of VCAT before the resignation is effective. On such an application VCAT will typically consider whether a replacement or successor attorney can step in, whether an administrator should be appointed and whether the principal's affairs can otherwise be properly managed.

Until the resignation is effective in accordance with the Act, the attorney remains legally responsible. Walking away informally, or simply telling the principal "I'm done", is not enough.

What Happens After an Attorney Resigns?

What happens next depends on what the enduring power of attorney itself says.

• Replacement or successor attorney named — many enduring powers of attorney name a successor or alternative attorney to take over if the original attorney resigns, dies or loses capacity. Once the resignation is effective, the named successor steps in automatically.
• Joint attorneys — where attorneys were appointed jointly, the resignation of one may end the entire appointment unless the document specifically provides that the remaining attorneys can continue. The drafting of the appointment matters and should be reviewed carefully.
• Records and accounts — the outgoing attorney should hand over a complete set of records, account statements, tax records and any documents relevant to decisions made during their period of appointment.
• Continuing duty — the duty to account for decisions made while in office does not end on resignation. An attorney remains answerable for what they did (and did not do) while they were acting.

For these reasons, resignation should be planned rather than rushed wherever possible.

What If There Is No Replacement Attorney?

Where the enduring power of attorney does not name a replacement or successor, the consequences of a resignation depend again on the principal's capacity.

• If the principal still has capacity, the principal can sign a new enduring power of attorney appointing someone else. They may also wish to consider revoking an enduring power of attorney and re-doing their broader estate planning at the same time.
• If the principal has lost capacity, a new enduring power of attorney cannot be made. In that case, an application may need to be made to VCAT for the appointment of an administrator under the Guardianship and Administration Act 2019 (Vic) to manage the principal's financial affairs, and (where relevant) a guardian to make personal decisions.

These risks underline why VCAT must approve a resignation once the principal has lost capacity — the Tribunal can ensure that someone is in place to manage the principal's affairs before the existing attorney steps down.

Can an Attorney Refuse to Act From the Beginning?

Yes — and it is important to distinguish refusal from resignation. Refusal applies where a person who has been appointed has not yet started exercising the powers and decides they do not want to take them up at all. Resignation applies where the attorney has begun acting and later decides to step down.

In Victoria, a person who has been appointed but has not yet begun to act can sign a written notice indicating that they will not act and provide it to the principal (or, where required, to VCAT). Doing so promptly is important: the longer the appointed person allows others, including banks and institutions, to treat them as the acting attorney, the more they expose themselves to potential responsibilities.

Anyone considering whether to accept an appointment in the first place should think carefully about the workload, the family dynamic and their own capacity to commit to the role before signing acceptance documents.

Practical Tips Before Resigning

Before formally resigning, a thoughtful attorney in Victoria will usually work through the following checklist:

1. Read the enduring power of attorney carefully — identify any successor, joint or alternative attorney and any conditions or limitations on the appointment.
2. Assess the principal's current capacity — this drives whether resignation can occur on notice or whether VCAT's leave is required, and may need input from the principal's treating doctor.
3. Plan the handover — talk with any successor attorney, the principal (where capacity permits) and key family members about timing, accounts and outstanding matters.
4. Bring records up to date — reconcile accounts, prepare a summary of recent transactions and gather original documents to hand over.
5. Obtain legal advice — particularly where the principal's affairs are complex, where there is family conflict, or where VCAT's leave will be required.
6. Prepare the formal notice — use the form required by the Powers of Attorney Act and ensure it is properly signed and witnessed.
7. Notify the relevant parties — the principal, any successor or co-attorney, the bank, accountants, the ATO, Centrelink, superannuation trustees and any other institution that holds the enduring power of attorney.
8. Keep copies — retain a complete record of the resignation notice, the handover documents and any correspondence in case questions arise later.

Conclusion

Resignation is a legitimate and sometimes necessary step for an attorney appointed under a Victorian enduring power of attorney. The Powers of Attorney Act 2014 (Vic) recognises that life circumstances change and provides a structured way for attorneys to step down — on notice while the principal has capacity, and with VCAT's leave once capacity has been lost.

Done carefully, with proper notice, a clear handover and attention to the principal's ongoing needs, resignation need not be disruptive. Done informally or in haste, it can leave the principal exposed and the resigning attorney facing avoidable questions about what they did, and did not do, while in office. If you are considering resigning as attorney under an enduring power of attorney in Victoria, early advice is almost always the safest path.

Frequently Asked Questions