The Public Guardian has announced that from April 1, 2013, substitute attorneys will be required to confirm by way of signature, that they are willing to act at the point of registration.

This change in practice will impact on the Schedule 1 certificate, which is incorporated in the power of attorney document, as it will be necessary to state the names of any substitute attorneys in Section 4 of the certificate. These requirements will apply to continuing and/or welfare powers of attorney signed after April 1, 2013.

Up until now OPG has only required the signature/s of principal attorney/s to indicate they are willing to act (a requirement that needs to be fulfilled to make the deed statutorily compliant and thus registerable). Section 19 of the Adults with Incapacity (Scotland) Act 2000 requires the Public Guardian to be satisfied that “a person appointed to act is prepared to act”.  A substitute attorney is considered to be appointed and thus, by way of their signature, we need to be satisfied of their willingness to act. Should it become necessary for a substitute attorney to act, we will request an indication of their continued willingness to act immediately before they are required to do so. Our practice from April 1, 2013 is in line with legal advice taken on this matter.

The power of attorney registration form that OPG currently provides is being modified and will include a facility for substitute attorneys to confirm their willingness to act. This form will be available from the Power of Attorney Registration Forms & Guidance Notes section of the website by the end of February. This version of the form may be used prior to April 1,2013.

For more information contact OPG on 01324 678300 or opg@scotcourts.gov.uk.