Ruqayyah Snyder
A power of attorney is a legal document that allows someone to act on your behalf as your 'attorney'. This means they can sign legal documents and manage your affairs. If you want to change some details in your power of attorney or appoint new attorneys, you must cancel the existing documents and create a new power of attorney. To cancel a power of attorney, you must inform your attorneys that their powers have been revoked, ideally in writing. You may also need to fill out a revocation form, depending on your state or territory in Australia. Once cancelled, you can create a new power of attorney by completing a form, signing it, and having it witnessed.
| Characteristics | Values |
|---|---|
| What is a Power of Attorney? | A legal document that allows someone else to act and make decisions on your behalf as your 'attorney'. |
| Who can be an Attorney? | A family member, close friend, solicitor or the NSW Trustee and Guardian. |
| Who can appoint an Attorney? | Anyone over the age of 18 with full legal capacity. |
| What are the types of Power of Attorney? | General Power of Attorney and Enduring Power of Attorney. |
| When to appoint a General Power of Attorney? | For a specific purpose and a fixed period of time. |
| When to appoint an Enduring Power of Attorney? | When you want to give someone the power to make decisions after you lose capacity. |
| What are the risks of appointing an Attorney? | The Attorney could enter into transactions or take actions that are to your disadvantage. |
| How to appoint an Attorney? | By completing a form, signing it and having it witnessed. |
| How to cancel a Power of Attorney? | By advising the appointed Attorney that their powers are being revoked and putting the cancellation in writing. |
| How to change a Power of Attorney? | By cancelling the existing documents and filling out new forms for a new Power of Attorney. |
| Is registration of Power of Attorney required? | Registration is required only if your Attorney will deal with your real estate. |
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What You'll Learn
Cancelling an existing power of attorney
In Queensland, the enduring power of attorney must be unregistered with the Queensland Titles Registry by lodging a request to revoke the power of attorney (Form 6) together with the Revocation of Power of Attorney form.
It is important to note that an Enduring Power of Attorney (EPA) can only be revoked in limited circumstances if the person who made it has lost legal capacity. In such cases, an application can be made to the Tribunal to decide if the EPA should be cancelled.
While not strictly related to cancelling an existing power of attorney, it is worth mentioning that if an attorney does not comply with their duties and obligations, the Public Guardian can investigate them, and the Queensland Civil and Administrative Tribunal (QCAT) can remove them as the attorney.
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Choosing a new attorney
Trust and Understanding
It is crucial to select someone you trust implicitly and who understands your values, wishes, and what is important to you. This ensures that they will act in your best interests and make decisions that align with your values and desires.
Competency and Capacity
Your attorney should be competent and capable of handling the responsibilities entrusted to them. They should be able to keep accurate records of their decisions and actions on your behalf. Additionally, they must be at least 18 years of age and have the legal capacity to make decisions.
Decision-Making Ability
The chosen attorney should have sound judgment and decision-making skills. They will be responsible for making decisions about your finances, property, and personal matters, so ensure they are capable of making well-informed and thoughtful choices.
Availability and Commitment
Ensure that your chosen attorney is willing and able to take on the role. Discuss their willingness to commit the necessary time and effort to manage your affairs effectively.
Multiple Attorneys or Trusted Advisors
Consider appointing more than one attorney or requiring your attorney to consult with a trusted person before making decisions. This can provide a check-and-balance system and help ensure that your wishes are honoured.
Regular Review
Remember that circumstances can change, so it is important to review your power of attorney annually. This allows you to make any necessary adjustments or choose a new attorney if needed.
When choosing a new attorney, it is always recommended to seek legal advice, especially if your situation is complex or involves large sums of money. This will help protect your interests and ensure that you make an informed decision.
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Filling out new forms
A Power of Attorney (PoA) is a legal document nominating a person or trustee to manage your assets and financial affairs. It is a complex document, and while it is possible to fill out the forms yourself, it is recommended that you seek legal advice to ensure the document reflects your wishes.
There are different types of PoA, including a General PoA and an Enduring PoA. A General PoA is a temporary arrangement, often used when someone is travelling or unwell, and becomes invalid when the donor dies or loses the capacity to manage their affairs. An Enduring PoA continues to have effect during the donor's lifetime, even if they lose the capacity to manage their affairs.
When filling out the forms, you will need to specify the powers that your attorney will have, as well as any restrictions. For example, you may wish to grant them power over your financial affairs, such as paying taxes or operating a bank account, or you may wish to grant them power over specific assets, such as real estate. If your attorney will be dealing with real estate, you must register your PoA with the local Land Titles Office in your state.
To complete the form, you will need to sign it in front of a witness. This can be anyone over the age of 18, and they do not need to read the document, only confirm that they saw you sign it. If you are appointing more than one attorney, you will need to use the long form.
It is important to note that a PoA is a powerful document, and you should be careful about who you appoint as your attorney. There is a potential for abuse of power, so it is recommended that you regularly review your PoA to ensure it is being used appropriately.
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Witnessing and signing
Once you have filled out the form, you need to print it off and sign it in front of witnesses. You can also use the online form, which can be electronically signed and witnessed with all persons in separate spaces connected by audiovisual link.
Two adult witnesses are required for an enduring power of attorney appointment. One must be authorised to witness affidavits or be a registered medical practitioner. The other witness should not be a family member, and under no circumstances can any appointed attorney witness the financial enduring power of attorney. The witness must verify that the donor signed the document on the date specified.
If you want to change some of the details in your power of attorney or appoint new attorneys, you will have to cancel the existing documents and fill out new forms for a new power of attorney. To cancel the existing documents, you must advise your attorneys that their powers have been revoked. It is recommended that you put the cancellation in writing and make sure that all your attorneys have a copy stating your wishes to cancel their powers. Some states or territories in Australia may require you to fill out a formal revocation form.
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State-specific requirements
In Queensland, you can revoke your enduring power of attorney at any time while you have the capacity to do so. You must use the revocation of enduring power of attorney (form 6) and inform all your attorneys that it has been revoked. If it was registered with the Queensland Titles Registry, you must also register the revocation by lodging another request to register power of attorney (form 16) along with a single-sided copy of the revocation form.
In Western Australia, there is no register for powers of attorney. However, if your attorney will deal with real estate, you must register your power of attorney document with the local Land Titles Office. An Enduring Power of Attorney (EPA) gives another person or organisation the authority to make financial and/or property decisions on your behalf. To cancel or revoke an EPA, the person who made it must have full legal capacity, and the cancellation must be made in writing. If the person has lost capacity, an application can be made to the Tribunal to decide if the EPA should be cancelled.
In Victoria, enduring power of attorney forms can be complex, and remote witnessing is only recommended as a last resort. If a document is not witnessed in a valid manner, it may not be legally binding. It is therefore suggested that people use a lawyer to ensure all requirements are met. You must sign the form in front of two adult witnesses, one of whom must be authorised to witness affidavits or be a medical practitioner.
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Frequently asked questions
A power of attorney is a legal document that allows someone else to act on your behalf as your 'attorney'.
You can appoint a power of attorney by completing a form, signing it, and having it witnessed. You can also seek the help of a lawyer to draft a custom power of attorney tailored to your specific situation.
Yes, you can change your power of attorney by cancelling the existing documents and filling out new forms. You must advise your attorneys that their powers have been revoked, preferably in writing.
You only need to register your power of attorney if your attorney will deal with your real estate. You can choose to register it to ensure it is on record as a public document.
Your power of attorney can make decisions about your property and finances. They can also pay taxes, buy and sell property, operate your bank account, and vote at meetings.
