What is a Power of Attorney
A power of attorney grants a person the right to manage the personal affairs of another individual who cannot attend to them because they are either busy or incapable. The principal (the person granting the power) sets this out in a legal document that outlines the degree of authority and responsibilities the person has in accordance with their role. The principal can grant this right to any person over the age of 18 years. For example, a relative, friend or professional adviser. A lawyer is not the only person who can hold this right. For more on this, check out our guide here.
Can a person resign from their Power of Attorney?
A person may renounce their power of attorney depending on the type of power they have. Resigning from this right is not the same as ‘revoking’ a power of attorney. Revoking this right means that the person can no longer handle the affairs of the principal (the person that grants the authority to act on their behalf).
General power
This is usually a short-term appointment that allows a person to handle your legal or financial affairs if you are temporarily unavailable to. However, a person must renounce their power of attorney once the principal can no longer independently make decisions for themselves (i.e. mental incapacity). Other than that, an attorney can renounce their power at any time through a written notice or form.
Enduring power
Unlike a general power, an enduring power will continue to operate if the principal ceases to have mental capacity to act in their best interests. Therefore, this sort of power can only be granted when the principal has mental capacity. This is a common arrangement made by more elderly members of society. On this basis, it is a longer term relationship.
If the principal still has mental capacity, an attorney may renounce their enduring power of attorney at any time through a written notice or form. However, a person holding an enduring power cannot renounce it at any time like a general power. Moreover, some States require that the attorney seek leave from the Supreme Court.
A person may only renounce their power under an enduring capacity while the principal is under an incapacity:
- if there is another attorney with a valid authority; or
- there is an alternative attorney who has a valid authority to act in their place and is willing to act.
After resigning a Power of Attorney
The former attorney must notify the principal and return any documents or matters to do with the principal’s affairs. They must also inform any relevant people or organisations that they are no longer acting on behalf of the principal.
Summary
- A power of attorney can be renounced.
- Can only be created if a principal has mental capacity.
- Renouncing an enduring power of attorney requires leave from the Supreme Court if the principal has lost their mental capacity.
Want to know more?
- If you need more information on your relationship with an attorney or principal, consider consulting one of our lawyers for a legal advice plan here.
- Interested in pursuing a matter? Find the lawyer fit for you with a free quote here.
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