Revocation of Power of Attorney or Everlasting Guardian in NSW Household and Marriage

Sometimes circumstances change and you may need to consider revoking a power of attorney or permanent guardian that you previously gave.

This article describes why you might consider revoking a power of attorney or permanent guardianship and how to do so in NSW.

What is a power of attorney?

When you appoint a power of attorney, you give that person authority to administer your financial affairs during your lifetime.

There are two types of powers of attorney, a general power of attorney and a permanent power of attorney.

A lawyer appointed by a general power of attorney can make financial decisions for you while you can still make them yourself – for example, if you are traveling abroad and your bills have to be paid by someone else in your absence.

A permanent attorney can make financial decisions for you while you are still able to make those decisions yourself, as well as after you have lost the mental capacity to make those decisions – make those decisions for yourself .

What is a permanent guardian?

A permanent guardian, on the other hand, is someone you appoint to make personal or lifestyle decisions on your behalf, such as: For example, where you live, what doctors you will see or what medical treatment you will receive if you can no longer make these decisions yourself.

You can limit the types of decisions your appointed attorney or guardian can make for you, and you can appoint more than one person for each role.

Usually, people hire family members or friends whom they trust to do the right thing of them and run their affairs as they see fit. (For more information, see Power of Attorney and Permanent Guardianship – The Horror Stories Edition.)

Why should I revoke a power of attorney or permanent guardian appointment?

Sometimes things happen that can prevent your appointed attorney or guardian from performing this role, such as: B. Illness or moving abroad.

Perhaps you simply no longer think this position is suitable or you would prefer to take it over from someone else. Examples include when you divorced or separated from your lawyer or guardian, or when your lawyer or guardian becomes addicted to drugs or alcohol.

We also see many situations in which the appointed lawyer or guardian no longer wants or can no longer perform the role and wants to be replaced.

Regardless of the reason, you can revoke a power of attorney or permanent guardian at any time, provided you have mental capacity, and you do not need to disclose your reasons to do so.

How do I revoke a power of attorney or permanent guardian?

In the first step, you inform your lawyer or legal guardian of the cancellation in writing. If you don’t let them know, they may be acting on your behalf.

If they have not been told that you have withdrawn their position, their actions are permissible and legally binding.

Although some people revoke such appointments themselves, we typically perform this role on behalf of our clients. This ensures that the revocation is properly and legally binding.

The revocation should be made in writing, signed and witnessed by the client. Notification should be made either in person or by email or registered mail so that delivery is notified.

The main points that we cover in the letter are:

• Addressed to the lawyer or guardian
• The Surname of our customer
• The meeting the power of attorney or guardian
• The Registration number (if the appointment has been registered)
• The terminology “hereby revoke” is used
• Signed and dated
• Lock in Signature of the witness

Who needs to be informed that I am revoking a power of attorney or permanent guardian?

In addition to notifying the solicitor or guardian of the revocation of their position, you should also inform any person or organization who may have had dealings with your lawyer or guardian or are likely to deal with them in the future.

This ensures that everyone is on the same page.

If the power of attorney is registered with the NSW land registry, you should also register the revocation with this authority.

When can I not revoke a power of attorney or permanent guardian?

A permanent power of attorney or guardian is established to protect your assets and your financial and personal well-being in the event you become incapacitated.

For this reason, it is not possible for you to cancel such appointments yourself if you lose your mental capacity.

Revoking a power of attorney or permanent guardian if you lose mental capacity

If you lose mental capacity, there are still steps you can take to prevent the lawyer or guardian from acting on your behalf.

Should you be subject to an administrative order under the NSW Trustee and Guardian Act, your attorney’s appointment will generally be suspended, although it will not be terminated.

An application can be made to the NSW Civil and Administrative Tribunal (NCAT) or the Supreme Court. This request can be made either by your lawyer, guardian, or someone else who the court believes has a genuine interest in your welfare or an interest in the proceeding.

After the request is made, the court may revoke or change the power of attorney or permanent guardian, or replace your lawyer or guardian with a different one.

What is an irrevocable power of attorney?

An irrevocable power of attorney can only be granted if there is a “consideration” for granting the irrevocable POA. That means something had to be paid for or something had to be returned.

For example, there might be an agreement between a mother and her children that the mother will sell the children’s house because the mother has the mortgage on it and the children owe X dollars.

The agreement states that the children agree that the mother can sell the children’s house, pay herself the $ X debt, and pay the balance to the children.

So the “consideration” is the agreement made between the mother and her children that the house will be sold and their debts paid back.

An irrevocable power of attorney can only be terminated by the Supreme Court.

If you believe that you have given irrevocable power of attorney but should not have it, you should consult an attorney.

Learn more about creating and revoking a power of attorney

For more information on creating and revoking a Power of Attorney or Permanent Guardian, see our previous articles:

Ten point checklist for updating your estate planning

Checklist: Practical Steps in the Event of Separation or Divorce

How to dispute a power of attorney or permanent guardian in NSW

Financial Abuse of the Elderly – Confronting a Hidden Epidemic

How do you choose an executor? – the Horror Story Edition

Foreign Assets and Australian Wills Case Study: Dubai

David Crossan
Anneka Frayne
Powers of attorney and estate planning
Stacks law firm

The content of this article is intended to provide general guidance on the subject. You should seek expert advice regarding your specific circumstances.