24 Jun 2021Sometimes circumstances change and you may find yourself having to consider revoking a Power of Attorney or Enduring Guardian which you have made previously.
This article outlines why you might consider revoking a Power of Attorney or Enduring Guardianship and how you go about doing so in NSW.
What is a Power of Attorney?
When you appoint a Power of Attorney, you are giving that person the power to manage your financial matters while you are still alive.
There are two types of Power of Attorney, a General Power of Attorney, and an Enduring Power of Attorney.
An attorney appointed by a General Power of Attorney can make financial decisions for you while you still have the capacity to make them yourself – for example, if you travel overseas and want someone else to pay your bills for you in your absence.
An attorney appointed under an Enduring Power of Attorney can make financial decisions for you, both while you still have the capacity to make them yourself, and once you have lost mental capacity to make those decisions – that is, if you become incapacitated and unable to make those decisions for yourself.
What is an Enduring Guardian?
An Enduring Guardian, meanwhile, is someone you appoint to make personal or lifestyle decisions on your behalf, such as where you will live, which doctors you will see or what medical treatment you will have, once you can no longer make those decisions yourself.
You can limit the types of decisions your appointed attorney or guardian can make for you, and you can appoint more than one person to each role.
Normally, people appoint members of their family or friends whom they trust to do the right thing by them and manage their affairs in accordance with their wishes. (For more information, please see Power of Attorney and Enduring Guardianship – the horror story edition.)
Why would I revoke an appointment of Power of Attorney or Enduring Guardian?
Sometimes things happen which may mean your appointed attorney or guardian can no longer perform this role, such as illness or relocating far away.
Perhaps you simply no longer think they are suitable, or would prefer someone else to take on the position. Examples of this include if you have divorced or separated from your attorney or guardian, or if your attorney or guardian becomes addicted to drugs or alcohol.
We also see many situations in which the appointed attorney or guardian no longer wants or is able perform the role and would like to be replaced.
Regardless of the reason, provided you have mental capacity, you are allowed to revoke a Power of Attorney or Enduring Guardian at any time, and you do not need to disclose your reasons for doing so.
How do I revoke a Power of Attorney or Enduring Guardian?
The first step is to let your attorney or guardian know of the revocation in writing. If you don’t let them know, they may act on your behalf.
If they have not been advised that you have revoked their position, what they do is permitted and legally binding.
Although some people revoke such appointments themselves, we generally perform this role for our clients. This ensures that the revocation is completed properly and legally.
Revocations should be in writing, signed by the principal and be witnessed. The notice should be either delivered personally, or by email or registered mail, so there is notification of delivery.
The key items we cover in the letter are:
- Addressed to the Attorney or Guardian
- The name of our client
- The date of appointment of the Power of Attorney or Guardian
- The registration number (if the appointment was registered)
- The terminology “hereby revoke” is used
- Signed and dated
- Include a witness’s signature
Who needs to be advised I am revoking a Power of Attorney or Enduring Guardian?
In addition to letting the attorney or guardian know about revoking their position, you should also advise any person or organisation that may have had dealings with your attorney or guardian, or would likely be dealing with them in the future.
This ensures everyone is on the same page.
If the Power of Attorney is registered with NSW Land Registry Services, you should also register the revocation with this agency.
When can’t I revoke a Power of Attorney or Enduring Guardian?
An Enduring Power of Attorney or Enduring Guardian is put in place to safeguard your assets and your financial and personal wellbeing should you become incapacitated.
For this reason, it is not possible for you to revoke such appointments yourself once you have lost mental capacity.
Revoking a Power of Attorney or Enduring Guardian if you lose mental capacity
If you lose mental capacity, there are still things that can be done to prevent the attorney or guardian from acting on your behalf.
Should you become subject to a Management Order under the NSW Trustee and Guardian Act, the appointment of your attorney, while not terminated, will generally be suspended.
An application to the NSW Civil and Administrative Tribunal (NCAT) or the Supreme Court can be made. This application can be made either by your attorney, guardian or another person that the court deems to have a genuine concern for your welfare or an interest in the proceedings.
After the application is made, the court can revoke the Power of Attorney or Enduring Guardian, or vary it, or replace your attorney or guardian with someone else.
What is an Irrevocable Power of Attorney?
An Irrevocable Power of Attorney can only be made if there is “consideration” for the giving of the Irrevocable POA. That is, something had to be paid or given in return.
For example, there might be an agreement between a mother and her children, that the mother sells the children’s home because the mother has the mortgage on it and is owed X number of dollars by the children.
The agreement says that the children agree for the mother to sell the children’s home, pay herself the X number of dollars owing and pay the balance to the children.
So the “consideration” is the agreement that was made between the mother and her children, that the house would be sold and her debt repaid.
An Irrevocable Power of Attorney can be only terminated by the Supreme Court.
If you think you have agreed to an Irrevocable Power of Attorney but shouldn’t have, you should consult a lawyer.
Further reading on making and revoking a Power of Attorney
For more information about making and revoking a Power of Attorney or Enduring Guardian, please see our earlier articles:
Ten point checklist to update your estate planning
Checklist: practical steps to take on separation or divorce
How to contest a Power of Attorney or Enduring Guardian in NSW
Elder financial abuse – confronting a hidden epidemic
How do you choose an executor for your will? – the horror story edition
