In this article, we will discuss changes that are required to Continuing or Welfare Powers of Attorney or a Combined Continuing and Welfare Power of Attorney in Scotland.
Over the last few years, we have found that more and more of our clients understand the need to draw up a Power of Attorney. Because things change over time, we are now being asked by clients how they can change a Power of Attorney.
When we discuss this with clients, we advise them that there are two categories of change. The first category is where there is a change of circumstances, and it is usually the Attorney who informs us of the change. The second category is where an amendment is needed. This is where something in the Power of Attorney needs to be changed. These second category changes are usually dealt with by the granter of the Power of Attorney.
When changes are made to a Power of Attorney, some of these must be notified to the Office of the Public Guardian (Scotland). Some examples of changes that need to be notified are:
When you contact the Office of the Public Guardian (Scotland) to advise of these changes, you need to quote the reference number under which the Power of Attorney has been registered. This number usually has a PG at the start. Where you do not have a note of the registration number, you should supply the name, address, and date of birth of the granter and also your own contact details.
When notifying the Office of the Public Guardian (Scotland) of a change, you should provide evidence supporting the change. For example, if the granter or an attorney has died, you should provide a copy of the death certificate.
You need to notify the Office of the Public Guardian (Scotland) if the attorney becomes incapable. This notification will be accepted if it is made by a solicitor, the granter of the Power of Attorney or a local authority mental health office or social worker. If someone else sends a notice advising the attorney has become incapable, the Office of the Public Guardian (Scotland) will need a medical opinion to confirm this.
The granter of a Power of Attorney is able to make the following changes to it:
When considering making amendments to a Power of Attorney, you must consider the extend of these. If the changes are extensive, the best course of action may be to revoke the existing Power of Attorney and make an entirely new one that reflects your wishes. That might also be more cost effective than creating a complicated deed of amendment.
As with when making changes to a Will, great care must be taken when creating extensive amendments to avoid creating conflict and ambiguity in the Power of Attorney.
If you have a simple amendment to make – something like a change in the attorney’s address – the Office of the Public Guardian (Scotland) can provide a form for this. The granter can then complete and return this and the change will be effective from the date on the Office of the Public Guardian (Scotland) receives it.
A full deed amendment is a much more extensive document and must be properly prepared. It should contain the details of the existing Power of Attorney and then should list the changes that are required.
If, for instance, the powers contained in the Power of Attorney are to be changed, the original powers should be specified and then the new Power which replaces it should be recited.
If the change relates to the removal of an attorney, reference to the attorney being removed should be made and then the replacement attorney’s (if any) details provided. In addition, if there is a new attorney to be added, the granter must specify the powers the new attorney can exercise, along with any existing attorney or as a substitute for an existing attorney and whether the powers can be exercise solely or jointly.
There is no prescribed format for a deed of amendment but once it has been prepared and signed, it must be sent to the Office of the Public Guardian (Scotland) for registration. The Power of Attorney then needs to be read alongside the deed of amendment.
As mentioned earlier, if the changes are extensive, it may be preferrable to revoke the existing Power of Attorney and prepare a fresh one. To revoke a Power of Attorney, the granter must write to the Office of the Public Guardian (Scotland) and explain that the Power of Attorney is to be revoked (cancelled). The granter also must complete a “Schedule 2” Certificate which needs to be signed by a practising solicitor or a UK registered medical doctor. Once this has been submitted to the Office of the Public Guardian (Scotland), the original Power of Attorney will be considered to have been revoked.