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Communtity Law Manual | Decision making & powers of attorney | Ending an enduring power of attorney

Enduring powers of attorney: Planning ahead by choosing someone to make decisions for you

Ending an enduring power of attorney

Can I change my mind about giving someone an EPA?

Protection of Personal and Property Rights Act 1988, ss 100A, 106

Yes. So long as you’re still “mentally capable”, you can change or cancel (“revoke”) an enduring power of attorney at any time.

Changes to an EPA should be done in writing, in a document that’s signed and witnessed in the same way that the original EPA was witnessed (see in this section, “How to create an enduring power of attorney”). However, it doesn’t have to be witnessed by the same person who witnessed the original EPA.

You can cancel the EPA simply by giving your EPA decision-maker (attorney) a written notice saying this. You can also suspend the EPA temporarily if you were “mentally incapable” for a time but have now regained “mental capacity”.

The processes are different depending on whether you change, cancel or replace your EPA, so get advice from a lawyer about which option best suits your situation and how to follow the correct process for it.

If you cancel your EPA, make sure you notify any bank or other institution that’s likely to be affected.

How an enduring power of attorney can come to an end

Protection of Personal and Property Rights Act 1988, ss 95A, 104–106

An enduring power of attorney stops having any effect if:

  • you cancel (revoke) the EPA or the attorney’s appointment under the EPA while you have “mental capacity”, by giving a written notice to the attorney (if you’ve made a new EPA that revokes the earlier one, you can simply give a copy of the new EPA to the old attorney)
  • you die (in other words, your attorney has no ongoing power to deal with your estate (your property) after you die)
  • the attorney states in writing that they no longer want to act as your attorney, through a “notice of disclaimer”
  • your attorney dies, loses mental capacity, or goes bankrupt
  • you had appointed two or more joint attorneys, and one of them dies, goes bankrupt or loses their own mental capacity (attorneys appointed to act “jointly” must always decide and act together, so a single attorney can’t validly continue on their own; by contrast attorneys appointed “severally” can decide and act separately, and so one of them can continue on their own)
  • the Family Court cancels the EPA (see the next heading).

When will the Family Court cancel the appointment of an attorney?

Protection of Personal and Property Rights Act 1988, s 105

The Family Court must cancel your attorney’s appointment if the judge is satisfied that:

  • you were pressured or tricked into appointing the attorney, by unfair influence or fraud, or
  • the attorney isn’t suitable for the role, taking into account, in particular, their relationship with you.

The Family Court can – but doesn’t have to – cancel your attorney’s appointment if the judge is satisfied that:

  • what your attorney is doing or planning to do isn’t in your best interests, or
  • they haven’t consulted with or given information to the people you had named for this purpose in your EPA.
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