OPG consults on new POA amendment policy

The Office of the Public Guardian is consulting on proposed changes to its power of attorney (“POA”) amendment policy, which would require a fresh POA deed in some situations where amendments are currently accepted.

The policy was introduced in 2012 as a substantial volume of requests to amend registered deeds was being received although the Adults with Incapacity (Scotland) Act 2000 is silent on whether it is permissible to amend a power of attorney deed once registered.

Amendments requested vary from updating a name or address of the granter or attorney, to adding or removing an attorney or substitute, to adding or revoking a power or powers. The OPG says they can be problematic, as there can be a number of alterations requested at the one time, making the deed, and the true intention of the granter, unclear. Also, more than one amendment submission is regularly received in the lifetime of a deed.

Financial institutions sometimes call OPG seeking guidance on the interpretation of amended POA documents; attorneys sometimes call as their document is not being accepted by organisation, having been amended.

Solicitors may also seek guidance on how to word a particular amendment.

The current amendment process is creating difficulties for OPG staff internally, being labour intensive as processing an amendment, on average, takes longer than processing a new POA. The rejection rate for amendments is extremely high. 

For all these reasons, OPG proposes to simplify its POA amendment policy and increase the protections and safeguards in the interests of adults with incapacity.

The Act makes provision for certain amendments to a registered POA, but not to add an attorney, swap an attorney from one role to another, or to add or change powers. Proof of the adult’s capacity is required to make these types of changes, as it is a significant alteration to the original registered deed. 

OPG now proposes that any significant alteration which requires a certificate of capacity production of a new certificate of registration, should be submitted as a fresh POA deed for registration.

If it is not the intention for the new deed to run side by side with the original deed, the submission should also include a revocation statement and certificate of capacity, to recall the original deed and have the one new registered deed.

Ahead of implementing any changes, it would be helpful to OPG to understand any impact of this change, and how practitioners currently operate the amendments process. OPG has issued a short survey, for completion by 19 April 2023.