Information Centre · Powers of Attorney
Can an Enduring Power of Attorney Be Revoked?
An enduring power of attorney is a serious document and the right to revoke it is just as important as the right to sign it. This guide explains when revocation is possible in Victoria, the process to follow, and what happens when the principal no longer has capacity to revoke.
Key points
- An enduring power of attorney can generally be revoked while the principal has capacity.
- Revocation must follow the formal requirements of the Powers of Attorney Act 2014 (Vic).
- Notice should be given to the former attorney and to relevant institutions.
- Where capacity is lost or disputed, VCAT may need to intervene.
- Replacement attorneys should be appointed promptly to avoid gaps.
People change their mind about their enduring power of attorney for all sorts of reasons. Relationships shift, circumstances change, attorneys move interstate, families grow and reorganise, and sometimes — unfortunately — attorneys behave in ways that make replacement essential. The Powers of Attorney Act 2014 (Vic) preserves the principal's right to revoke the document at any time while they have capacity to do so.
This article explains when revocation is possible, the process that must be followed, the notifications that should be given, the options available where the principal has lost capacity, and disputes that may arise.
When Revocation Is Possible
Under section 44 of the Powers of Attorney Act 2014 (Vic), a principal may revoke the whole enduring power of attorney, or the appointment of an attorney or alternative attorney under it, if the principal has decision-making capacity to make an enduring power of attorney giving the same power. The decision to revoke is itself a decision that requires capacity of that kind.
An enduring power of attorney also ceases to operate in other circumstances. It ends on the death of the principal. Under section 55, a later enduring power of attorney revokes an earlier enduring power of attorney unless the principal specifies otherwise in the later enduring power of attorney. The power given to a particular attorney may cease on that attorney's death, resignation or loss of capacity — the practical effect on the appointment as a whole depends on whether any other or alternative attorney has power for the matter. An enduring power of attorney can also be revoked, suspended or varied by an order of VCAT.
Capacity Requirements
Capacity is decision-specific and time-specific. The question is whether the principal has decision-making capacity to make an enduring power of attorney giving the same power at the time of the revocation. A person with some cognitive impairment may still have capacity to revoke and re-appoint even if they no longer have capacity for other decisions.
A medical assessment is not a legal precondition to revoking. Where capacity is in doubt or later contest is foreseeable, contemporaneous evidence — for example, from a treating doctor or specialist — may be relevant to supporting the validity of the revocation if it is challenged.
The Formal Revocation Process
A revocation under section 44 must be made using the prescribed instrument (section 45) and executed in accordance with sections 46 to 49 of the Powers of Attorney Act 2014 (Vic). In outline, and subject to the Act:
- under section 46, the instrument is signed by the principal, or by an eligible person signing in the presence of and at the direction of the principal (an "eligible signer" under section 47);
- under section 46(1)(b), two eligible witnesses (section 48) sign and date the instrument in the presence of the principal and each other — at least one witness must be a person authorised to witness the signing of an affidavit, or a registered medical practitioner;
- each witness gives the certification required by section 49; where an eligible signer has signed at the principal's direction, the certification under section 49(2) addresses that signer; and
- section 46 permits witnessing by audio-visual link in the manner provided by the Act.
As a practical protective step, the original enduring power of attorney document may be recovered from the attorney and either destroyed or clearly marked "revoked" to reduce the risk of the former attorney continuing to present it to organisations that are not aware of the revocation. Recovery or destruction is not itself the legal act of revocation. Where the attorney is uncooperative, our powers of attorney and elder law team can advise on the next steps, which may include a VCAT application.
Notification Requirements
Section 50 sets out the reasonable-steps notification requirements. Where the whole enduring power of attorney is revoked, the principal must take reasonable steps to inform each attorney. Where only the appointment of a particular attorney or alternative attorney is revoked, the principal must take reasonable steps to inform that person and all other attorneys and alternative attorneys under the enduring power of attorney. Section 50(3) provides that a failure to give that notice does not affect the validity of the revocation itself — the revocation is effective once made in accordance with the Act. Notification remains important for other reasons: an attorney who acts without knowledge of the revocation, and a third party dealing with an attorney they still believe to be authorised, may be entitled to protections under the Act. Prompt notice — in writing and by a method that produces evidence of receipt — protects the principal from the practical consequences of continued dealings on the former appointment.
Institutions that have been dealing with the attorney should also be notified as a matter of practice, including:
- banks and other financial institutions;
- the Australian Taxation Office and any tax agent acting under the attorney's authority;
- Centrelink and the Department of Veterans' Affairs;
- superannuation funds;
- aged care providers; and
- real estate agents, property managers and any counterparty to a current transaction.
A short cover letter enclosing the revocation and, where applicable, the new appointment can be prepared with legal advice.
Replacing an Attorney
A principal who wishes to replace an existing attorney can make a new enduring power of attorney. Under section 55, a later enduring power of attorney revokes an earlier enduring power of attorney unless the principal specifies otherwise in the later enduring power of attorney. Where only the appointment of a particular attorney is to be revoked, a section 44 revocation of that appointment may be the appropriate mechanism.
Where the previous attorney is being replaced because of concerns about their conduct, the new attorney should be given the information needed to assess whether further steps are appropriate — a request for accounts, recovery of misapplied funds, or a VCAT application for compensation. For more on the role generally, see our overview of powers of attorney in Victoria.
Family Disputes
Revocation of an enduring power of attorney can be a flashpoint in families. The attorney who is being removed may believe they have done nothing wrong. Other family members may take a different view. The principal, particularly if elderly, may feel pressure from different directions.
The lawyer taking the revocation instructions will consider whether it is appropriate to see the principal without the influence of any family member and to record the principal's reasons for the change in a contemporaneous file note. Steps of that kind can help protect both the principal and the validity of the revocation if it is later challenged.
Court and Tribunal Involvement
Where the principal has lost capacity to revoke the document themselves, an application to VCAT under the Powers of Attorney Act 2014 (Vic) may be appropriate. VCAT can, among other things:
- revoke, suspend or vary an enduring power of attorney;
- require an attorney to provide accounts and produce records;
- order an attorney to pay compensation for losses caused by their conduct; and
- make orders about particular dealings.
The appointment of a guardian or administrator, where required, is a separate matter under the Guardianship and Administration Act 2019 (Vic) and is not made under the Powers of Attorney Act itself. Under section 122 of the Powers of Attorney Act 2014 (Vic), an application in relation to an enduring power of attorney may be made by the principal, an attorney under the enduring power of attorney, the Public Advocate, the principal's nearest relative, or another person VCAT is satisfied has a special interest in the affairs of the principal. Legal representation is prudent where the conduct complained of is serious or where the attorney is expected to resist the application.
Common Mistakes
- Leaving the original document with the attorney without addressing recovery or notice to third parties.
- Failing to notify institutions so they can update their records.
- Revoking without a plan for what comes next — leaving the principal without an enduring authority in place if capacity is later lost.
- Not addressing capacity at the time of revocation — a revocation executed by a person who lacked capacity for that decision can be challenged and set aside.
- Treating a verbal statement as the revocation — a statement at a family meeting is not a revocation for the purposes of the Act.
For an overview of the role itself, see our companion article on enduring power of attorney mistakes to avoid, and for related estate planning issues, our guide on why every Victorian adult needs a Will.
Frequently Asked Questions
Can I revoke my enduring power of attorney at any time?
Under section 44 of the Powers of Attorney Act 2014 (Vic), a principal may revoke the whole enduring power of attorney, or the appointment of an attorney or alternative attorney under it, if the principal has decision-making capacity to make an enduring power of attorney giving the same power. Sections 45 to 49 govern the prescribed instrument, execution and witnessing. Under section 50(3), a failure to give notice of the revocation to an attorney does not affect the validity of the revocation itself.
What if the principal has lost decision-making capacity?
A principal who lacks decision-making capacity to make an enduring power of attorney giving the same power cannot themselves validly revoke the appointment. An application to VCAT may be made under section 122 by the principal, an attorney under the enduring power of attorney, the Public Advocate, the principal's nearest relative or another person VCAT is satisfied has a special interest in the affairs of the principal. Under the Powers of Attorney Act 2014 (Vic), VCAT has jurisdiction to review, revoke, suspend or vary an enduring power of attorney. Appointment of a guardian or administrator is made under the separate Guardianship and Administration Act 2019 (Vic).
Do I need to notify my bank when I revoke?
Section 50 requires the principal to take reasonable steps to notify each attorney of the revocation of the whole enduring power of attorney, or to inform the affected attorney and all other attorneys and alternative attorneys where only one appointment is revoked. Failure to give that notice does not affect the validity of the revocation itself (section 50(3)). As a practical matter, banks and other institutions may continue to act on the documents they hold on file until they are given written notice that the appointment has been revoked, so providing them with a copy of the revocation and requesting written confirmation is a sensible protective step.
Is recovering or destroying the original enough to revoke?
No. Recovering the original or marking it 'revoked' can be a practical step to reduce misuse, but it is not itself a legally effective revocation. Revocation only takes effect if a revocation under section 44 of the Powers of Attorney Act 2014 (Vic) has been made using the prescribed instrument (section 45) and executed in accordance with sections 46 to 49.
Can VCAT remove an attorney under the Powers of Attorney Act?
VCAT has powers under the Powers of Attorney Act 2014 (Vic) to review an attorney's conduct, require accounts, revoke, suspend or vary the appointment and order compensation for loss. Orders are discretionary and depend on the evidence. The appointment of a guardian or administrator, where required, is made under the separate Guardianship and Administration Act 2019 (Vic).
Does making a new Will revoke my power of attorney?
No. A Will deals with your estate after death. An enduring power of attorney operates during your lifetime and ends on the principal's death. Signing a new Will does not revoke an existing enduring power of attorney.
Can I revoke only one attorney's appointment?
Under section 44 a principal with the necessary capacity may revoke the whole enduring power of attorney or the appointment of an attorney or alternative attorney under it. Whether the intended result is best achieved by a section 44 revocation, or by making a new enduring power of attorney, is a matter on which legal advice is prudent.
What are the automatic ending events?
An enduring power of attorney ends on the death of the principal. Under section 55, a later enduring power of attorney revokes an earlier enduring power of attorney unless the principal specifies otherwise in the later enduring power of attorney. The power given to a particular attorney may cease on that attorney's death, resignation or loss of capacity, though this affects only the power given to that attorney and does not necessarily end the whole appointment where other or alternative attorneys have power. An enduring power of attorney can also be revoked, suspended or varied by an order of VCAT.
What should I do if I suspect misuse of my enduring power of attorney?
Seek legal advice promptly. Practical protective steps may include obtaining recent bank statements and account information, storing the original document securely and notifying the bank in writing. Whether a VCAT application under the Powers of Attorney Act 2014 (Vic) to revoke or suspend the appointment is appropriate depends on the circumstances. Direct contact with the attorney has practical and evidentiary implications and is best considered with legal advice.
Powers of Attorney
Need to Revoke or Replace an Attorney?
We advise Victorian families on revoking enduring powers of attorney, replacing attorneys and bringing VCAT applications where an attorney has acted inappropriately.
This article is general information only and does not constitute legal advice. Please obtain advice tailored to your circumstances.