Do you have concerns about how and when to revoke a Power of Attorney?

Powers of Attorney convey a great deal of responsibility on those appointed as an Attorney. As your circumstances change, you may decide that there is someone more suitable or that your current attorney (or alternative attorney) is no longer a suitable person to make decisions on your behalf.

In this situation, you may need to revoke your current Power of Attorney to ensure the right people are authorised to make decisions for you, when you can no longer do so. The most effective ways to revoke a Power of Attorney are:

Revocation by Principal (being the person who has been appointed an Attorney)
Revocation by death of Principal or Attorney
Attorney does not have decision making capacity, or
Later, inconsistent Power of Attorney.

Revocation by Principal

As the Principal, you may revoke a Power of Attorney or an appointment of an individual Attorney (or alternative Attorney) at any time, provided you can demonstrate the same decision making capacity required when you made the Power of Attorney in the first instance.

To formally revoke your Power of Attorney, you need to complete a Deed of Revocation. If you have a physical disability that prevents you from signing the Deed, you may direct another person to sign for you. The person who signs on your behalf must:

Be over the age of eighteen
Not be a witness, and
Not be an attorney.

The Deed of Revocation must be signed in the presence of two independent witnesses, one of whom must be either a person qualified to witness an affidavit or a medical practitioner. The witnesses must not be:

The person whom the Principal has directed to sign the form on their behalf
An Attorney
A relative of the Principal or of an Attorney, or
A care worker of the Principal

On revoking your Power of Attorney, you must take reasonable steps to inform the Attorney in question, as well as all other Attorneys and alternates, that the Power of Attorney has been revoked.

Revocation by death of Principal or Attorney

A Power of Attorney ceases to be effective once the Principal has passed away.

Similarly, should an attorney pass away, the Power of Attorney is revoked so far as the power concerned the deceased Attorney.

Attorney does not have decision making capacity

Should an Attorney lose decision making capacity for the matters to which the Power of Attorney applies, the Power of Attorney is revoked so far as it gives power to that Attorney.

Later, inconsistent Power of Attorney

A Power of Attorney is revoked by a later Power of Attorney of the Principal, so far as the later Power of Attorney is inconsistent.

For more information on Powers of Attorney and forms relating to revocation of Power of Attorney, see the Office of the Public Advocate’s site here.

For more information on Powers of Attorney see our previous article here.

How Can Sharrock Pitman Legal help me with my revocation of Power of Attorney?

If you require expert legal assistance revoking a Power of Attorney or simply need assistance regarding Powers of Attorney in general, please feel free to contact our Accredited Specialist Wills and Estates Law team on 1300 205 506 or, alternatively, fill in the form below.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Written by a member of our Legal Team

For further information contact

Mitchell Zadow

Mitchell is the Managing Principal of our law practice.

He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate. For further information, contact Mitchell on his direct line (03) 8561 3318.

Taxes and deceased estates

Can I refuse to act as an Executor?

How does separation affect a Will?

However, in this article we will set out the factors that influence how long it will take to obtain a Grant of Probate and to administer an estate in Victoria.

The basics

First things first: what is a Grant of Probate? A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will. Without Probate, the asset holders (say a bank or share registry) cannot be satisfied as who has the correct authority to receive the deceased's assets and may refuse to pay out.

Sometimes, for smaller estates or if assets are mostly jointly owned with a surviving spouse, asset holders might agree to release payment without requiring a Grant of Probate. This is usually on the basis that the person who receives payment promises to repay (or Indemnify) the asset holder if it turns out they paid to the wrong person.

If there is no Will, then you cannot obtain a Grant of Probate. Instead you obtain Letters of Administration. This is effectively the same, in terms of authorising someone to administer the estate, and would usually be obtained by the person who is the closest next-of-kin to the deceased.

“A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will.”

Timeframes for Probate in Victoria

In order to obtain a Grant of Probate, the Supreme Court needs to be given information about the assets and liabilities of the estate, the deceased person, the witnesses to the Will, the executors and the Will itself. An advertisement of your intention to apply for Probate must also be published on the Supreme Court website for at least 14 days prior to any application being lodged.

Often, making enquires to obtain all the necessary information can take a number of weeks. Also, you will need the Death Certificate for the application for Grant of Probate and possibly for making proper enquires regarding the assets and liabilities. Waiting for the Death Certificate to issue can therefore add a few more weeks to the process. Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.

The Court itself usually does not take long to process the application (maybe another 1 to 2 weeks) and this is completed using the electronic Supreme Court filing system. This means you do not have to go to a Court hearing. The timeframe for processing applications for Letters of Administration is even less, given that there is no Will document for the Court to consider. There is also a general discretion for the Court to raise a 'Requisition' asking for more information before they review the application - this can sometimes delay matters.

“Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.”

So, here we are a few months after death and you finally have a Grant of Probate or Letters of Administration. It is important to remember that this is the start of the estate administration and not the end. For a very simple estate, you might only need a further month or so to cash the assets and pay them to the correct beneficiaries. However, it can often be more complex than that. Factors that determine the timeframe to administer the estate include:-

Some assets will take time to cash or transfer. For example, if selling a property, final settlement might be 60/90/120 days from the day of sale.
There is a 6 month period for challenges to be brought against the estate and executors must wait until this period expires before distributing the estate, if there is any risk that a disgruntled family member might come forward.
There might need to be final tax returns for the deceased or for the estate. Failing to wait for the ATO to process these could leave the executor personally liable for a tax bill.

You might need to advertise for creditors to come forward and wait for a period of months while this advertising timeframe expires. This protects the executor if they are unsure of all of the deceased's financial dealings and creditors.
It might not always be a good time to immediately cash estate assets. For example, the shares just took a nose-dive, do you still sell regardless of available price?

There is a general rule that executors have an 'executor's year' to complete the estate administration. This means that you should be aiming to have the estate finalised and distributed within 12 months from the date of death.

Liability limited by a scheme approved under Professional Standards Legislation.

Need help with Probate?

Our expert legal team is ready to take your call!

Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:

DIRECT LINE:

(03) 8561 3318

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Revocation of Power of Attorney

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