The PoA Amendment Policy was introduced in January 2012. The policy was developed as The Adults with Incapacity (Scotland) Act 2000 (the Act) is silent on whether it is permissible to amend a power of attorney deed once registered.
With the increasing number of PoA deeds now registered, the number of requests to amend these deeds has also increased. With a wealth of knowledge and experience to draw from we have decided to review our PoA Amendment Policy. This will allow us,
amongst other things, to provide better protection to the granter, once they have become an adult with incapacity, as was the intention of the Act and our policy.
The type of amendment requested is varied, for example:
- To update a name or address of the granter or attorney
- To revoke a power, or powers
- To remove an attorney, including a substitute
- To add an attorney, including a substitute
- To add a power, or powers
These amendments can be problematic, as there can be a number of alterations requested within the one amendment submission, making the “live” deed unclear and making the true intention of the granter somewhat dubious.
We frequently receive calls from:
- Financial institutions seeking guidance on the interpretation of amended PoA documents.
- Solicitors seeking guidance on how to word a particular amendment.
- Attorneys as their document is not accepted by organisations, as it has been amended and has become unclear.
The current amendment process is also labour intensive and creates internal difficulties for OPG as processing an amendment, on average, takes longer than processing a new PoA. The rejection rate is extremely high, and on some occasions, after multiple
attempts submitting the amendment, they are never finalised. It would be beneficial to have clearer, simpler approach, which would make registration simpler for the granter/solicitor. It would also make operation of the PoA straight forward
for the attorney, and the deed easier to interpret.
It is for all of the aforementioned reasons, we propose to simplify our PoA Amendment Policy and to increase the protections and safeguards in the interests of adults with incapacity. We propose
that any significant alteration, which requires a certificate of capacity, or requires production of a new certificate of registration, should be submitted as a fresh PoA deed for registration. Ahead of implementing any changes, it would be helpful to
understand any impact this change may have on your organisation, and how you currently operate the amendments process. We would be grateful if you could complete the following short
survey by 3 May 2023.