Resigning as Attorney Under an Enduring Power of Attorney in Victoria

Attorneys resign for ordinary human reasons. Their own health changes, they move away, the workload turns out to be far larger than anyone expected, a family relationship becomes unworkable, or the principal's affairs grow past what a well-meaning relative can responsibly manage. None of those reasons has to be justified to anyone. What does have to be done properly is the resignation itself.

The mechanics are narrower and more technical than most people expect, and getting them wrong has real consequences: an attorney who believes they have resigned but has not, and who therefore stops acting, has not escaped the duties in the Powers of Attorney Act 2014 (Vic) — they have simply stopped performing them.

What This Guide Covers

This is a guide to exiting the role, and to nothing else. It assumes there is a valid enduring power of attorney in place, that you hold an appointment under it as attorney or alternative attorney, and that you want to know how to stop.

It does not cover how enduring powers of attorney are made or how they operate day to day, how a principal revokes an appointment, what to do about a suspected misuse of the power, supportive attorney appointments, medical treatment decision makers, or guardianship and administration applications. Each of those has its own guide, linked at the point where it becomes relevant and again under related reading.

Two definitional points matter throughout. First, the Act operates matter by matter: an appointment may cover financial matters, personal matters, both, or specified matters only, and resignation operates on the power you actually hold for the relevant matter. Second, everything in the resignation provisions turns on the principal's decision-making capacity for the matter, which is a legal test, not a diagnosis.

Who Can Resign, and From What

Sections 56 and 59 both speak of an attorney or alternative attorney "who has power for a matter". Three preliminary questions follow.

Do you hold the office at all? Under sections 37 and 38 an enduring power of attorney is effective as to an attorney or alternative attorney only if that person has signed a statement of acceptance in the prescribed form, witnessed as the section requires, containing the statements the section specifies — including that the person understands the obligations of an attorney and undertakes to act in accordance with the Act. A person named in an instrument who has never accepted has never become an attorney, and has nothing to resign from.

Do you have power for the matter? Section 39 governs when an attorney's power is exercisable. The principal may specify a time, circumstance or occasion — immediately on making, on loss of capacity for the matter, or otherwise — and if nothing is specified the power is exercisable from the making of the instrument. Section 39(3) adds that even where a later trigger is specified, an attorney may exercise the power for a matter during any period in which the principal does not have decision-making capacity for that matter.

Are you an attorney or an alternative attorney, and are you acting? This distinction decides your pathway once capacity is gone. Section 31(2) sets out when an alternative attorney is authorised to act: in the circumstances specified in the instrument or, if none are specified, where the attorney for whom the alternative attorney was appointed dies, lacks decision-making capacity for the relevant matters, is otherwise not willing or able to act, or has had their appointment revoked by operation of section 54. Section 31(3) requires an alternative attorney to act in the same manner as the attorney they replace unless the instrument provides otherwise.

The Capacity Question Comes First

Before anything else, form a view about whether the principal has decision-making capacity for the matter. Nothing else in the resignation regime can be worked out until that is settled, and it is the point at which the most common errors are made.

Section 4(1) provides that a person has decision-making capacity for a matter if able to understand the information relevant to the decision and the effect of the decision, retain that information to the extent necessary to make the decision, use or weigh it as part of the decision-making process, and communicate the decision and their views and needs in some way. Section 4(2) presumes capacity unless there is evidence to the contrary.

Section 4(4) then sets out matters to which regard should be had, and they cut against the assumptions people usually bring to the question. A person may have capacity for some matters and not others. Incapacity may be temporary rather than permanent. It should not be assumed from a person's appearance, or merely because they make a decision others think unwise. A person has capacity for a matter if it is possible for them to make the decision with practicable and appropriate support — the examples given include tailored information, help communicating, additional time and assistive technology. Section 5 requires a person assessing capacity to take reasonable steps to conduct the assessment at a time and in an environment in which capacity can be assessed most accurately.

For a resigning attorney, the practical significance is that a diagnosis of dementia, a residential aged care placement or a general decline does not by itself put the principal into the section 59 pathway. Nor does a good day put a principal who cannot understand the decision into section 56. Where the position is genuinely unclear, and particularly where a lot turns on it, obtain advice and, if appropriate, a considered clinical opinion directed to the specific matter rather than a general certificate.

Pathway A: The Principal Has Capacity

Division 4 of Part 5 applies where the principal has decision-making capacity for the matter. It is short, and it is permissive.

Section 56(1) provides that an attorney or alternative attorney under an enduring power of attorney who has power for a matter may resign as attorney or alternative attorney for that matter at any time when the principal has decision-making capacity for the matter. No leave is required, no reason need be given, and no consent is needed from the principal, from a co-attorney or from anyone else. Section 56(2) provides that on the resignation the enduring power of attorney is revoked so far as it gives power to that attorney or alternative attorney for that matter.

Two obligations attach. Section 57 requires the resignation to be in the prescribed form, which is Form 4 discussed below. Section 58 requires reasonable steps to inform the people it identifies.

Because this pathway is so straightforward, timing is the thing worth thinking about. A principal with capacity can make a fresh enduring power of attorney, and it is far easier to arrange a replacement while that is still possible than to arrange one afterwards. An attorney who has begun to doubt whether they can continue serves the principal best by raising it early rather than waiting until the decision has been taken out of both of their hands.

Pathway B: The Principal Lacks Capacity for the Matter

Division 5 applies where the principal does not have decision-making capacity for the matter. It is frequently misdescribed — including in a good deal of published material — as a rule that an attorney can only resign with VCAT's permission once the principal loses capacity. That is not what section 59 says. Leave is the fallback, not the default.

Section 59(1) — attorneys. An attorney who has power for a matter may resign for that matter at any time when the principal does not have decision-making capacity for the matter:

• under paragraph (a), if there is another attorney who has power for the matter;
• under paragraph (b), if there is no other attorney who has power for the matter but there is an alternative attorney who has power for the matter and who is able and willing to act; or
• under paragraph (c), if neither paragraph (a) nor paragraph (b) applies, with leave from VCAT or the Supreme Court.

Paragraph (b) is worth reading twice. It is not enough that an alternative attorney exists on the page. That person must have power for the matter, and must be both able and willing to act. Willingness in particular is a question of fact that the resigning attorney should confirm and record before relying on the paragraph, because a resignation purportedly made under paragraph (b) where the alternative attorney is unwilling is a resignation made without the leave that paragraph (c) required.

Section 59(2) — alternative attorneys who are acting. An alternative attorney who has power for a matter and who is acting under that power may resign for that matter when the principal does not have decision-making capacity for the matter only with leave from VCAT or the Supreme Court. There is no equivalent of paragraphs (a) and (b) here: an acting alternative attorney in the no-capacity situation always needs leave.

Section 59(3) — alternative attorneys who are not acting. An alternative attorney who has power for a matter and who is not acting as attorney under the enduring power of attorney may resign for that matter when the principal does not have decision-making capacity for the matter. No leave is required. This is the provision for the person who was appointed as a standby, has never been called on, and does not want to be called on later.

Section 60 then provides that if section 59(1)(a) or (b) or (3) applies, the resignation must be in the prescribed form. It follows that Form 4 governs the no-leave routes; it is not prescribed for sections 59(1)(c) and 59(2). For a resignation under section 59(1)(c) or 59(2), filing an application does not itself end the appointment: the attorney or acting alternative attorney remains in office unless and until VCAT or the Supreme Court grants leave and the resignation takes effect in accordance with the resulting order or the steps authorised by it. Section 61 sets out the notification duties for the three form-based routes.

Which Pathway Applies

The table summarises sections 56 to 60 and is not a substitute for reading the instrument and the sections in the circumstances of the particular appointment.

Applying for Leave to Resign

Where section 59(1)(c) or 59(2) applies, the resignation depends on leave from VCAT or the Supreme Court. In practice these applications are made to VCAT, which maintains a powers of attorney list and publishes an application form for orders about enduring powers of attorney and supportive attorney appointments.

Section 122(1) identifies who may apply for an order under Division 2 of Part 8: the principal, any attorney under the enduring power of attorney, the Public Advocate, the nearest relative of the principal, and any other person whom VCAT is satisfied has a special interest in the affairs of the principal. A resigning attorney therefore has standing in their own right.

Two features of VCAT's published guidance are worth knowing before you start. VCAT states that there is generally no fee in a powers of attorney case, and its application material states that a medical report is not required from an applicant who is applying to resign as attorney. That second point removes what is otherwise the most awkward part of preparing a powers of attorney application, particularly for an attorney who has no realistic means of obtaining a clinical report about a principal they may no longer have contact with.

What the Tribunal will do in any particular case cannot be predicted in the abstract, and the Act does not prescribe criteria for granting leave. As a matter of preparation, an application is improved by material that squarely addresses the questions the Tribunal will inevitably have: what the appointment is and what matters it covers, why you cannot continue, why no other attorney and no able and willing alternative attorney has power for the matter, what has already been done to arrange a handover, what records and accounts you hold and can produce, what is urgent in the principal's affairs, and who is proposed to take over. Where the answer to the last question is that nobody can, an application under the Guardianship and Administration Act 2019 (Vic) for an administrator or guardian will usually need to be part of the picture. Our guide to guardianship and administration applications at VCAT deals with that process, and our general guide to going to VCAT covers the practical conduct of a Tribunal application.

You remain in office unless and until leave is granted and the resignation takes effect in accordance with the resulting order or the steps it authorises. The duties in Part 6 continue to apply throughout, and a decision to down tools while an application is pending creates precisely the risk the leave requirement exists to prevent. Where something in the principal's affairs genuinely cannot wait, that should be raised with the Tribunal rather than resolved by inaction.

The Prescribed Form: Form 4

The Powers of Attorney Regulations 2025 (Vic) came into operation on 10 August 2025 and, by regulation 4, revoked the Powers of Attorney Regulations 2015 (Vic) together with the 2017 and 2021 amending Regulations. Forms downloaded from older sources, or held on file from an earlier matter, should be discarded.

Regulation 9 provides that for the purposes of sections 57 and 60 of the Act the prescribed form is Form 4 of Schedule 1. There is a single resignation form covering attorneys and alternative attorneys, and covering financial and personal matters alike. The belief that separate financial and personal resignation forms exist is a common and understandable error — the appointment form itself distinguishes between those categories — but it is wrong.

Form 4 calls for:

• the name, or position, of the attorney or alternative attorney resigning;
• that person's address;
• a statement of resignation identifying whether it is made under section 56, 59(1)(a), 59(1)(b) or 59(3) of the Act — the four no-leave routes, and no others;
• whether the resignation is as attorney or as alternative attorney, and, for an alternative attorney, the attorney or attorneys for whom they were appointed;
• the name of the principal and the date the enduring power of attorney was made, if known; and
• the signature of the person resigning, and the date.

Form 4 contains no witness attestation. That is a genuine difference from the making of an enduring power of attorney and from the statement of acceptance under sections 37 and 38, both of which are witnessed. The absence of a witness makes the record you keep yourself more important, not less: retain the signed and dated original or a clear copy, and keep proof of how and when it went to each person entitled to notice.

Selecting the correct section on the form is not a formality. The election is the assertion that you were entitled to resign without leave. If the facts do not support the paragraph nominated — typically because the alternative attorney relied on under paragraph (b) turns out not to have had power for the matter, or not to have been able and willing — the resignation is exposed to challenge, and the person who filled in the form is the person who made the assertion.

Who Must Be Told

The notification duties differ between the two Divisions, and the difference is easy to miss because the section headings are identical.

Section 58 — capacity-present pathway. A person who resigns as attorney must take reasonable steps to inform the principal, and any other attorney and any alternative attorney under the enduring power of attorney. A person who resigns as alternative attorney must take reasonable steps to inform the principal, and any attorney under the enduring power of attorney. Section 58(3) provides that a failure to give a notification does not affect the validity of the resignation.

Section 61 — no-capacity pathways. Where section 59(1)(a) applies, the resigning attorney must take reasonable steps to notify the other attorney who has power for the matter and any other attorney under the enduring power of attorney, and any alternative attorney. Where section 59(1)(b) applies, the resigning attorney must take reasonable steps to notify the alternative attorney and any other alternative attorney under the enduring power of attorney. Where section 59(3) applies, the resigning alternative attorney must take reasonable steps to notify any attorney under the enduring power of attorney and any other alternative attorney. Section 61(4) provides that a failure to give a notification does not affect the validity of the resignation.

Notice the asymmetry: section 61 does not require notice to the principal. That is a deliberate consequence of the pathway applying only where the principal does not have decision-making capacity for the matter. It is not a direction to keep the principal in the dark, and where the principal can be told something meaningful about a change in who is managing their affairs there is every reason to do so. It does mean that an attorney who cannot practicably inform a principal in that position has not thereby failed to comply with section 61.

Neither section deals with third parties, because third-party notification is not part of the legal act of resigning. It is, however, the part that determines whether the resignation works in practice. Banks and credit unions, share registries and brokers, superannuation trustees and pension providers, Services Australia and the ATO, aged care and retirement village operators, insurers, utilities and the principal's accountant may each hold a copy of the instrument and may each keep acting on it until told otherwise. Write to each of them, in terms that state you have resigned, identify the date, and ask that their records be updated and that instructions no longer be accepted from you.

What a Resignation Actually Ends

Section 56(2) is precise: on the resignation the enduring power of attorney is revoked so far as it gives power to that attorney or alternative attorney for that matter. A resignation is a subtraction from the instrument, not a cancellation of it. If your appointment was limited to financial matters, or to specified matters, the subtraction is correspondingly limited, and any wider appointment you hold that you have not resigned from continues.

Section 62 deals with what happens to the others. The ending of any power of a joint attorney does not affect the ability of the remaining joint attorney or attorneys who have that power to exercise it (subsection (1)); the same is provided for joint and several attorneys (subsection (2)) and for several or majority attorneys (subsection (3)). Subsection (3A) provides that if the ending of a majority attorney's power results in the remaining majority attorneys no longer being able to exercise the power as majority attorneys, the remaining attorneys must exercise that power jointly — a default that changes how the survivors must operate, not merely who they are. All of subsections (1), (2), (3) and (3A) yield to contrary provision by the principal in the instrument under subsection (4).

The consequence is that the instrument has to be read before the effect of a resignation can be stated. An assumption that a named alternative attorney simply steps in, or that the remaining attorneys carry on exactly as before, is not safe. Where the instrument is unclear on the point, that is itself a reason to obtain advice, and it is one of the drafting problems addressed in our guide to common mistakes in enduring powers of attorney.

Where Nobody Is Left to Act

This is the situation the Act treats most cautiously, and rightly: a principal who cannot make decisions and has nobody authorised to make them is exposed.

If the principal has decision-making capacity for the matter, the gap is solvable. The principal can make a fresh enduring power of attorney appointing someone else, and can revisit the wider arrangements at the same time — our guide to revoking an enduring power of attorney covers the principal's side of that exercise. Sequencing matters here: it is generally better for the replacement appointment to be in place before the outgoing attorney's resignation takes effect.

If the principal does not have decision-making capacity for the matter, a fresh appointment is not available, and section 59(1)(c) means you cannot resign without leave. The substantive answer is usually an application to VCAT under the Guardianship and Administration Act 2019 (Vic) for the appointment of an administrator for financial matters or a guardian for personal matters. Section 83 of the Powers of Attorney Act 2014 (Vic) then constrains any remaining attorney: where VCAT makes an administration order, an attorney must not exercise a power for financial matters for that principal unless authorised by VCAT and only so far as authorised, and the same applies to personal matters where a guardianship order is made.

Records, Accounts and Handover

Section 66 requires an attorney to keep accurate records and accounts of all dealings and transactions made for financial matters, and of all material dealings and transactions made for personal matters. A resignation is the moment at which that obligation stops accruing and starts being examined. The handover is what converts a set of records into a demonstrable account of stewardship.

A workable handover pack usually contains:

• the original instrument, or a full copy, together with any related documents held;
• a schedule of the principal's assets and liabilities as at the date of resignation, with statements supporting each entry;
• reconciled bank, investment and superannuation records for the period of your appointment, and the transaction records behind them;
• tax records, including any lodgements made or outstanding, and the details of the accountant or tax agent engaged;
• income records — pension and Services Australia correspondence, rent, distributions — and the arrangements for each continuing;
• details of recurring commitments: aged care or retirement village fees, insurances, rates, utilities, subscriptions and direct debits;
• a note of any conflict transaction, gift or maintenance payment made and the basis on which it was made;
• a short written note of anything outstanding, contentious or time-critical, including deadlines; and
• the identity of every third party notified of the resignation, and the date of each notification.

Keep your own complete copy. You, not the incoming attorney, will be the person asked to explain your period of office if a question arises later, and handing over the only set of records is a recurring and avoidable mistake.

Exposure That Survives Resignation

Resigning ends the office prospectively. It does not close the books on what was done while it was held.

Section 116(1)(e) empowers VCAT to make orders about the lodgement with VCAT of accounts or other documents relating to the exercise of the enduring power of attorney over a specified period by the attorney responsible under the Act for keeping them, and paragraphs (f) and (g) extend to the examination and auditing of those accounts, who is to conduct it, whether they are to be paid, and reporting on the result. Section 120 sets out the orders VCAT may make, including revoking or varying the instrument or an appointment, suspending it, authorising or validating a transaction, and making any other order it considers necessary.

Section 77 allows the Supreme Court or VCAT to order an attorney to compensate the principal for a loss caused by the attorney contravening a provision of the Act relating to enduring powers of attorney while acting as attorney. Section 77(2) makes plain how little the passage of events limits that power: it applies even if the attorney has been convicted of an offence in relation to the contravention, even if the principal has died — in which case compensation is payable to the estate — and even if the enduring power of attorney is invalid or has been revoked, or was invalid or had been revoked at the time of the contravention. Section 78 lists who may apply, including the principal, any attorney, an executor or administrator of the principal's estate, the Public Advocate, the nearest relative and any other person VCAT is satisfied has a special interest in the principal's affairs. Section 79 imposes time limits of six months running from the death of the principal or the attorney, which the Supreme Court or VCAT may extend.

The practical lesson is not that resignation is dangerous. It is that resignation is the wrong tool for a problem about past conduct. Where the concern is that another attorney has misused the power, resigning removes your ability to do anything about it; the remedies are those discussed in our guide to misuse of an enduring power of attorney, and section 122(1)(b) gives an attorney standing to apply while still in office.

Common Mistakes

• Resigning by letter, email or conversation. Sections 57 and 60 require the prescribed form for every no-leave route. Telling the family, returning the original document or writing to the bank is not a resignation.
• Assuming leave is always needed once capacity is lost. Section 59(1)(a), 59(1)(b) and 59(3) each allow resignation without leave. Applying to VCAT unnecessarily wastes months.
• Assuming leave is never needed. The mirror error. An acting alternative attorney under section 59(2), and an attorney with no co-attorney and no able and willing alternative attorney under section 59(1)(c), must obtain leave.
• Relying on an alternative attorney who is not able and willing. Paragraph (b) requires both. Confirm it in writing before you sign Form 4.
• Using superseded forms. The 2015 Regulations were revoked on 10 August 2025. Use Form 4 of Schedule 1 to the 2025 Regulations.
• Looking for a separate financial or personal form. There is one Form 4 for both.
• Notifying the wrong list of people. Section 58 and section 61 require different recipients, and only section 58 requires notice to the principal.
• Stopping work before the resignation is effective. Where leave is required, the office and its duties continue until leave is granted.
• Overlooking third parties. Institutions holding a copy of the instrument will keep acting on it until told.
• Handing over the only copy of the records. Sections 66, 77 and 116 all point back to the period of your appointment. Keep your own set.

A Resignation Checklist

1. Confirm you hold the office. Check the executed instrument for your statement of acceptance under section 37 or 38, and identify the matters for which you hold power.
2. Read the instrument. Identify every other attorney and alternative attorney, how they are appointed — jointly, jointly and severally, severally, by majority — and any condition, limitation or contrary provision engaging section 62(4).
3. Assess capacity for the matter. Apply section 4, remembering the presumption, the matter-specific inquiry and the relevance of practicable and appropriate support. Obtain advice where the position is unclear.
4. Identify your pathway. Section 56, section 59(1)(a), 59(1)(b) or 59(1)(c), section 59(2) or section 59(3).
5. Verify the facts your pathway assumes. In particular, confirm in writing that any alternative attorney relied on has power for the matter and is able and willing to act.
6. Arrange the succession before you go. Where the principal has capacity, allow time for a fresh appointment; where they do not, consider whether an administration or guardianship application is needed.
7. Bring the records up to date. Reconcile accounts, prepare the schedule of assets and liabilities and assemble the handover pack.
8. Complete Form 4, or file the application. Use Form 4 of Schedule 1 to the 2025 Regulations for the no-leave routes, electing the correct section; otherwise apply to VCAT for leave under section 59(1)(c) or 59(2).
9. Give the statutory notifications. Section 58 or section 61, as applicable, by reference to the correct list of recipients.
10. Notify third parties in writing. Banks, registries, superannuation trustees, Services Australia, the ATO, care providers, insurers and advisers.
11. Complete and document the handover. Deliver the pack, obtain an acknowledgement of receipt and keep your own complete copy.
12. Retain everything. The signed Form 4 or the Tribunal's order, the notifications and the records, indefinitely rather than for a period you have guessed at.

How We Can Help

Parke Lawyers advises attorneys, alternative attorneys, principals and families across Melbourne's east and south-east on enduring powers of attorney and the transitions that go with them. On a resignation we can identify which pathway applies on the facts, confirm whether leave is required, prepare the prescribed form and the statutory notifications, prepare and run a VCAT application for leave, structure the handover so that your period of office is properly documented, and, where the principal no longer has capacity and nobody is left to act, prepare the guardianship or administration application that has to be dealt with at the same time.

If the concern is not simply that you want to step down but that something has gone wrong in the administration of the power, tell us that at the outset. The advice is different, and the order in which things are done matters. See our Powers of Attorney & Elder Law service for the wider context.

Related Reading

• Powers of attorney in Victoria — what the different appointments are and how they operate.
• Common mistakes in enduring powers of attorney — drafting and appointment problems, including the ones that make a resignation complicated.
• Revoking an enduring power of attorney — the principal's side: ending an appointment they made.
• Misuse of an enduring power of attorney — remedies where the concern is past conduct rather than exit.
• Guardianship and administration applications at VCAT — appointing an administrator or guardian when nobody is left to act.
• Medical treatment decision makers in Victoria — the separate regime for medical treatment decisions.
• Powers of attorney and aged care decisions — the decisions that most often prompt an attorney to reconsider the role.
• Going to VCAT — how a Tribunal application is prepared and run.

Official Sources

• Powers of Attorney Act 2014 (Vic) — authorised in-force version — including sections 3 to 5, 21, 31, 37 to 39, 54, 56 to 62, 63, 66, 77 to 79, 83, 116, 120 and 122.
• Powers of Attorney Regulations 2025 (Vic) — in operation from 10 August 2025; regulation 4 (revocations), regulation 9 and Form 4 of Schedule 1.
• Department of Justice and Community Safety — Powers of Attorney Act 2014 — the department's guidance and the prescribed forms under the 2025 Regulations, including the resignation form.
• VCAT — Powers of attorney and Before you apply — Powers of attorney — what VCAT can decide, fees and the documents required.
• VCAT — Application for orders, powers of attorney — the application form, including its note that a medical report is not required where the applicant is applying to resign as attorney.
• Office of the Public Advocate — information for attorneys — official guidance on the attorney's role and obligations.
• Guardianship and Administration Act 2019 (Vic) — relevant where an administrator or guardian is needed after an attorney's authority ends.

Frequently Asked Questions