A power of attorney ceases to operate:
- if the donor or donee dies;
- if the subject matter (for example, specified property) of the power of attorney is destroyed;
- if either the donor or donee notifies the other that it is revoked — this should be done in writing;
- where the power of attorney is a general power of attorney, the power of attorney expires if and when an expiry date is given;
- where the power of attorney is a general power of attorney, if the donor becomes legally incapacitated.
There is no specific form to revoke a general power of attorney; but a donor should put something in writing making it clear that the power of attorney is revoked.
There is a form which can be used to revoke an enduring power of attorney. It is available from sa.gov.au. It is also in the Enduring Power of Attorney Kit put out by the Legal Services Commission and the Office of the Public Advocate.
Notice of revocation
If a general power of attorney has been deposited with the Lands Titles Office, a written revocation of that power should also be given to the Lands Titles Office to place on file [Real Property Act 1886 (SA) s 157].
The enduring power of attorney revocation form must be lodged with the Lands Titles Office.
Revocation forms must also be shown to each of the banks, companies or other registries where the power of attorney has been previously noted, produced or registered, in order to give notice that the attorney has ceased to have any authority to act on the former donor's behalf.
Can the donee of an enduring power of attorney cease to act?
If the donor of an enduring power of attorney becomes legally incapacitated, for example mentally ill, or intellectually disabled, or unable to communicate in any way, the enduring power of attorney will continue to be effective. In these circumstances a donee can only cease to act by making an application to the Supreme Court [Powers of Attorney and Agency Act 1984 (SA) ss 9, 11] or if the South Australian Civil and Administrative Tribunal (SACAT) appoints an administrator [Powers of Attorney and Agency Act 1984 (SA) s 10]. An administrator appointed by SACAT has power to vary or revoke the Enduring Power of Attorney (see Administrators - their powers and duties). Unless and until the enduring power of attorney is revoked, it remains suspended and ineffective. However, it can commence to operate again if the administration order is ever discharged.
Actions by the donee after the death of the donor
If a donor dies, or, in the case of a general power of attorney, becomes legally incapacitated, anything done by the attorney on behalf of the donor before she or he knows of the death or legal incapacity will be valid [Powers of Attorney and Agency Act 1984 (SA) s12(1)]. As a safeguard, when exercising a power of attorney, a donee may wish to make a statutory declaration that no notice of death (or legal incapacity in the case of a general power of attorney) has been received. This can be done at the time of exercising the power or at a later time.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.