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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.

Please note that LegalVision is a commercial law firm and cannot assist with these matters. We recommend you contact your local law society.

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