What Happens If Your Attorney Cannot Act?

Creating an Enduring Power of Attorney (EPOA) helps ensure someone you trust can manage important financial and legal matters if you lose decision-making capacity.

However, many people focus on choosing an attorney without considering another important question:

What happens if your attorney cannot act when they are needed?

Life can change unexpectedly. The person you appoint may become unwell, move away, lose capacity themselves or simply become unable to perform the role.

Understanding what may happen in these situations can help you create more effective future planning arrangements.

In this guide, we explain why attorneys sometimes cannot act, how substitute attorneys may help and why regular reviews are important.

Why Might An Attorney Be Unable To Act?

There are many reasons an attorney may be unable to perform their responsibilities.

Common examples include:

Serious illness.
Loss of capacity.
Death.
Moving overseas.
Family circumstances changing.
Choosing not to continue in the role.

These situations are often unpredictable, which is why future planning should consider more than just the first person appointed.

What Is A Substitute Attorney?

Many Enduring Power of Attorney arrangements allow for the appointment of a substitute or backup attorney.

A substitute attorney is someone who may be able to step into the role if the primary attorney is unable or unwilling to act.

This can provide an additional layer of protection if circumstances change in the future.

The exact rules vary between Australian states and territories.

Why A Backup Attorney Can Be Important

Without a backup arrangement, problems can arise if the original attorney becomes unavailable.

A substitute attorney may help:

Reduce delays.
Provide continuity.
Avoid confusion.
Support ongoing financial management.
Reduce stress for family members.

Many people view a backup attorney as a form of contingency planning.

Can Family Members Automatically Step In?

Not necessarily.

Family members cannot automatically assume they can take over simply because the appointed attorney is unable to act.

The outcome depends on the document itself and the laws that apply in the relevant jurisdiction.

This is one reason why carefully prepared planning documents can be important.

What Happens If No Backup Attorney Exists?

If the appointed attorney cannot act and no substitute arrangements are available, additional legal and administrative processes may be required.

This can create uncertainty and delays during an already difficult period.

The exact process varies across Australia.

Planning ahead may help reduce the likelihood of these complications occurring.

How Regular Reviews Can Help

An attorney who was suitable ten years ago may not be suitable today.

People move, retire, experience health issues and face changing family circumstances.

Regular reviews help ensure:

Your attorney remains appropriate.
Your backup arrangements are still suitable.
Your wishes remain current.
Your documents continue to reflect your circumstances.

Many Australians review important planning documents every three to five years or after major life events.

What Should You Consider When Choosing A Backup Attorney?

Choosing a substitute attorney often involves many of the same considerations as choosing a primary attorney.

You may wish to consider whether the person:

Is trustworthy.
Can manage financial matters responsibly.
Communicates well.
Understands the responsibilities involved.
Is willing to take on the role if needed.

The goal is to create a practical backup plan if circumstances change.

Should Your Attorney And Backup Attorney Know About The Document?

Many people choose to tell both their attorney and substitute attorney about the document.

This may help ensure they understand:

Their role.
Your wishes.
Where the document is stored.
Who may need to be contacted if the document becomes relevant.

Clear communication can help avoid confusion later.

Real-Life Example

Peter appointed his older brother as his attorney because he had always helped manage financial matters within the family.

Several years later, Peter’s brother developed significant health issues and was no longer able to take on the responsibility.

Fortunately, Peter had also appointed a substitute attorney when creating his EPOA.

Because a backup arrangement was already in place, there was greater certainty about who could assist if financial decisions needed to be made.

The family avoided unnecessary delays and confusion during a stressful period.

Frequently Asked Questions

Can my attorney refuse to act?

In some situations, an attorney may be unable or unwilling to continue in the role. The exact rules depend on the relevant jurisdiction.

What is a substitute attorney?

A substitute attorney is a backup person who may be able to act if the primary attorney cannot perform the role.

Can family members automatically replace an attorney?

Not automatically. The outcome depends on the document and the applicable laws.

Should I appoint a backup attorney?

Many Australians choose to appoint a substitute attorney as part of their future planning arrangements.

How often should I review my attorney appointments?

Many people review their planning documents every three to five years or after major life changes.

Sources

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Disclaimer

This article provides general information only and is not legal advice. Enduring Power of Attorney laws vary between Australian states and territories. Professional legal advice should be obtained before creating, changing or relying on legal documents.