A person appointed as an attorney may resign their appointment as attorney pursuant to an Australian power of attorney.  However, the type of power of attorney and whether or not the person who appointed them as attorney (this person is known as the principal) has capacity to make decisions will determine what steps need to be taken by the attorney to resign from their appointment.

A resignation of an attorney is different to a revocation of a power of attorney by the principal.  See “How to Revoke a Power of Attorney”.

1.   Resign in Writing Under an Australian Power of Attorney

In every case, regardless of the type of Australian power of attorney and whether or not the principal has capacity, an attorney should always resign by signed notice in writing to the principal.  There are certain circumstances where an attorney may resign orally (for example where the attorney is appointed pursuant to the common law, not the relevant powers of attorney legislation in the principal’s state or territory), but even in such circumstances it is still advisable that the attorney resign by signed notice in writing to the principal.

2.   General Power of Attorney Resignation

If the Australian power of attorney is a general power of attorney then the attorney can resign at any time because a general power of attorney is only effective while the principal has capacity.  This means that if the principal loses capacity then the attorney cannot act for the principal during any period of incapacity and it is therefore unnecessary for the attorney to resign.

3.    Enduring Power of Attorney Resignation

If the Australian power of attorney is an enduring power of attorney then the attorney can generally only resign while the principal has capacity.  This gives the principal the opportunity to appoint another attorney in place of the resigning attorney.  However, if a power of attorney is an enduring power of attorney, the attorney wishes to resign and the principal does not have capacity then the attorney must apply to the court and seek leave to resign as attorney.

4.   What to do After Notice is Given

After the principal is given notice that the attorney has resigned, the principal should request that any copies of the power of attorney within the attorney’s possession be returned and the principal should notify any organisations with whom the attorney has been dealing in their capacity as attorney that the attorney is no longer authorised to act on behalf of the principal.  The principal may also wish to destroy or clearly denote on the original power of attorney (or any copies of it) that the attorney has resigned.

Conclusion

A decision to resign under an Australian power of attorney is a serious decision. It should therefore be documented appropriately. Complete your resignation now, using LegalVision! Find a lawyer to help you through the steps and call us on 1300 544 755.

Lachlan McKnight
If you would like further information on any of the topics mentioned in this article, please get in touch using the form on this page.
Would you like to get in touch with Lachlan about this topic, or ask us any other question? Please fill out the form below to send Lachlan a message!

Privacy Policy Snapshot

We collect and store information about you. Let us explain why we do this.

What information do you collect?

We collect a range of data about you, including your contact details, legal issues and data on how you use our website.

How do you collect information?

We collect information over the phone, by email and through our website.

What do you do with this information?

We store and use your information to deliver you better legal services. This mostly involves communicating with you, marketing to you and occasionally sharing your information with our partners.

How do I contact you?

You can always see what data you’ve stored with us.

Questions, comments or complaints? Reach out on 1300 544 755 or email us at info@legalvision.com.au

View Privacy Policy