Changing or Cancelling an EPOA

People often ask, after signing an enduring power of attorney (EPOA), whether the signature is final? The short answer: an EPOA is not set in stone. As long as you have capacity, you may change or cancel it. What changes over the course of time is the route for doing so and who needs to be involved.

This article explains the principles and flags the cases where a general reading is not enough and the details should be checked with a lawyer and with the Public Guardian.

Why change it at all?

Change of circumstances. Common reasons include:

• The attorney-in-fact you chose has moved abroad, fallen ill or lost your trust.
• Children or grandchildren were born and the family has grown.
• Your assets, and therefore the instructions about them, have changed.
• You want different activation conditions, for example an earlier or later start. We wrote about activation in the article on when an EPOA takes effect.
• The wording no longer reflects what you want.

The key difference lies in when the change is wanted: before or after it takes effect

An EPOA "waits" until the activation conditions you set are met, often until the time when you can no longer make decisions yourself. Your options differ greatly between the two stages.

Before it takes effect (prior to activation)

While the document is dormant and you have capacity, your options are broad. In general, the appointer may cancel the EPOA, usually by written notice to the attorney-in-fact. You can also sign a new document that replaces the old one and update the registration.

Note that cancelling without updating the registration can cause confusion. If someone later approaches the Public Guardian with an old, un-updated document, it creates an undesirable situation for the parties concerned. Make sure the cancellation is updated with all the relevant bodies connected to the document.

After it takes effect

Once the document is active, the situation is different. And you may no longer be able to make decisions, due to legal incapacity, so you cannot change or cancel it yourself. At that stage:

• The attorney-in-fact acts according to the instructions, under the supervision of the Public Guardian.
• Changing or cancelling mainly happens through the court, if the attorney-in-fact is not fulfilling the role properly or there is another justified reason.
• You may also have set a special clause in advance that limits the ability to cancel. Think carefully about such clauses before signing.

How is a change made in practice?

A substantive change, such as replacing the attorney-in-fact, widening powers or changing activation conditions, is usually made by signing a new document through the same structured process: a meeting with a lawyer, a capacity and understanding check, signing and filing. The new document replaces the old one. Small drafting errors, such as a wrong identifying detail, may justify a correction, but it is worth clarifying and verifying the right route in advance.

Check with the drafter of the document which steps are required, because the Public Guardian's procedures and forms are updated from time to time.

When the court gets involved

A court might intervene in an EPOA in certain cases. Typical examples are a concern about abuse of the powers, a conflict of interest, failure to meet reporting duties, or a claim that the document was made under conditions that did not allow free understanding and consent. Such an application goes to the Family Court and requires proof. There is no guarantee of any outcome, and each case is judged on its merits.

Practical tips

1. Do not let an update drag on. If circumstances changed, update while you have capacity and are of settled mind.
2. Talk to the current attorney-in-fact before replacing them. An open conversation avoids hurt feelings.
3. Keep a current copy of the existing document and of every cancellation or change, and let the relevant parties know who holds them.
4. Recheck the activation conditions each time you change something. A small change in one clause can affect the others.
5. Do not rely on a general article. Details, forms and procedures are updated, so check them with a lawyer and on the Public Guardian's website.

When to speak to a lawyer

Speak to a lawyer before any change, especially when replacing an attorney-in-fact, changing activation conditions, or when a disagreement arises in the family. A lawyer will check what is registered, advise whether to correct the document or sign a new one, and make sure the change is documented and reaches everyone who needs to know. Such a review is usually short and can be done calmly while you still have capacity to decide.

FAQ

Can I change just one clause? Usually yes, but a full updated document is normally signed to avoid contradictions.

What if the attorney-in-fact will not step aside? Before activation the decision is yours. After activation a legal proceeding may be needed.

Should I tell the bank or other bodies? As a rule, update anyone who holds a copy or expects to rely on the document.

Does cancelling an EPOA affect a will? No. They are separate documents. An EPOA deals with your life, a will with what comes after. On the difference between an EPOA and guardianship, see this article.

In summary

An EPOA is meant to serve you, so it should reflect your wishes in your life as it is today. If years have passed since signing, or something significant changed, review the document and check that it still reflects your wishes.

For general information on the arrangement, read about enduring power of attorney, and if you are considering an update, contact the office. This article is general and is not legal advice.