Can an Enduring Power of Attorney Be Revoked?

When Revocation Is Possible

A principal can revoke their enduring power of attorney at any time while they have decision-making capacity for the matter. The decision to revoke is itself a decision that requires capacity — a principal who has lost capacity for financial matters cannot validly revoke a financial power of attorney.

An enduring power of attorney also ends automatically in several circumstances. It ends on the death of the principal. It ends if the principal makes a new enduring power of attorney inconsistent with the earlier one. It ends on the resignation, death or loss of capacity of the sole attorney where no substitute has been appointed. And it can be ended by an order of the Victorian Civil and Administrative Tribunal.

Capacity Requirements

Capacity is decision-specific. The question is not whether the principal has capacity generally, but whether they have capacity to make this particular decision. A person with moderate dementia may still have the capacity to decide that a particular attorney should be removed and a new one appointed, even if they no longer have capacity to manage their finances day-to-day.

Where capacity is in doubt, an assessment by a GP or geriatrician at or close to the time of revocation is the sensible course. The assessment protects the validity of the revocation and protects the lawyer who takes instructions for it. Without that assessment, the revocation can be challenged later by the displaced attorney or by a family member who supports them.

The Formal Revocation Process

Revocation of an enduring power of attorney is done in writing. The Act prescribes a process that involves a signed instrument of revocation, witnessed in the same way as the original document. Two adult witnesses are required, at least one of whom must be an authorised witness — a registered medical practitioner, an Australian legal practitioner, a justice of the peace or a person authorised to witness an affidavit. The witnesses must both attest that the principal appeared to understand the nature and consequences of the revocation.

The original power of attorney document should ideally be recovered from the attorney and either destroyed or marked "revoked". Recovering the document avoids the risk of the former attorney continuing to use it in dealings with organisations who are not on notice of the revocation.

Notification Requirements

Revocation is only effective against an attorney from the time the attorney becomes aware of it. Until then, the attorney can continue to act and the principal will be bound by what the attorney does. Notification should therefore be prompt, in writing, and ideally by a method that produces evidence of receipt — registered post, email with a delivery confirmation, or personal service through a process server.

Notification should also be given to every institution that has been dealing with the attorney. The most common are:

• 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;
• health professionals where the document includes a medical decision-maker; and
• real estate agents, property managers and any counterparty to a current transaction.

A short cover letter from a lawyer enclosing the revocation and the new appointment is the most efficient way to handle this notification.

Replacing an Attorney

Revocation alone is rarely the end of the matter. Most principals want to replace the existing attorney with someone else. The two steps are usually taken at the same appointment. A new enduring power of attorney is signed in favour of the new attorney, and the existing document is revoked.

Where the previous attorney is being replaced because of misconduct, the new attorney should be given the information needed to assess whether anything has been done that warrants further action — a request for accounts, recovery of misapplied funds, or an application to VCAT 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 is a common flashpoint in families. The attorney who is being removed may believe they have done nothing wrong. Other family members may insist that the revocation is overdue. The principal, particularly if elderly, may feel pulled in different directions.

The lawyer taking the revocation instructions should ordinarily insist on seeing the principal alone, without the influence of any family member, and should record the principal's reasons for the change in a contemporaneous file note. These steps protect both the principal and the validity of the revocation.

Court Involvement

Where the principal has lost capacity to revoke the document themselves, the path is an application to VCAT. VCAT can:

• revoke or suspend the appointment of an attorney whose conduct is contrary to the principal's interests;
• require an attorney to provide accounts and produce records;
• order an attorney to pay compensation for losses caused by their conduct;
• appoint an administrator to manage financial matters and a guardian to make personal and lifestyle decisions; and
• make orders preventing particular dealings, such as sales of real estate or transfers between accounts.

VCAT applications are accessible — they are designed to be brought by family members without lawyers, although legal representation is sensible where the conduct complained of is serious or where the attorney is expected to resist.

Common Mistakes

• Leaving the original document with the attorney. Always recover the original on revocation, or take steps to ensure third parties know it is no longer effective.
• Failing to notify institutions. Banks continue to act on documents they have on file until they are told otherwise.
• Revoking without replacing. Leaves the principal with no enduring authority in place if capacity is later lost.
• Not addressing capacity at the time of revocation. A revocation signed by a person who lacked capacity is invalid and can be set aside.
• Treating the family meeting as the revocation. A verbal statement at a family meeting is not a valid revocation. The Act's formal requirements must be met.

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