Key processes affecting enduring power of attorney change

Townsends Lawyers solicitor Dominique Perry said that considering how personal and influential these decisions are, it is crucial to appoint an attorney you trust. An SMSF may consider the attorney to be a family member, a spouse, a solicitor, a close friend or a carer.

“There are various reasons why a principal may wish to revoke an attorney. You may no longer trust your attorney, circumstances of yourself or your attorney have altered, they are no longer suitable to make decisions, or events where relationships change,” Ms Perry said in a recent update.

“It is also important to note separation and divorce may not automatically terminate a POA.”

In an example provided, Angelina appointed her husband Brad as her enduring power of attorney. Unfortunately, 10 years later, Angelina and Brad grew apart and mutually decided to divorce.

It is important to note, separation and divorce may not automatically terminate the enduring power of attorney. It will still be a valid appointment.

“Most legislation dealing with powers of attorney allows principals to revoke their attorneys. Angelina must officially revoke the appointment and she should seriously consider appointing a new attorney,” Ms Perry explained.

“Angelina must have legal capacity. A person without legal capacity can neither appoint nor remove an attorney, so if you or a loved one are at risk of losing legal capacity through dementia, you need to act sooner rather than later.”

In NSW, there is no specific form for revocation. However, Ms Perry said the revocation must state the name of the principal (Angelina), name of the attorney, date of appointment, and registered number of power of attorney (if registered).

“It is also important to include date of revocation and state the words ‘hereby revoke’, signed and dated and witnessed,” she noted.

“Angelina must register her revocation with the NSW Land Registry Services and then notify Brad of the revocation in writing.”