Two matters of practice advice from the Office of the Public Guardian
New guardians declaration form

From 29 March 2021, the OPG will be asking all lay financial guardians to complete a declaration form before an application is lodged with the sheriff court. Solicitors may use the form and issue it to clients right away. This will help promote familiarity with the form and raise awareness of the associated processes.

The purpose of the form is to engage with lay prospective financial guardians much earlier in the guardianship process, to (1) outline the responsibilities of the role, and (2) risk-assess their suitability.

Solicitors are asked to note this change to practice, as they will be instrumental in ensuring the court is provided with sufficient information to allow suitability to be fully assessed.

How will it work?

OPG asks that solicitors provide their clients with the declaration form at the outset or civil legal aid stage. The completed form should be returned to the solicitor and then sent to OPG along with intimation of the summary application.

OPG will then send a copy of the form to the court along with its letter outlining observations including whether the form was completed and returned. Where appropriate, OPG will direct the sheriff to any sections of the form which may promote the suitability of the prospective lay financial guardian, or which may flag concern in respect of their suitability.

If the form is not sent to OPG, it will write to the prospective lay financial guardian to ask that the completed form be returned five days before the court hearing date.

For further information, see the website or email: opgorders@scotcourts.gov.uk

Emergency measures for postal PoA submissions

As a result of current Government advice in respect of COVID-19, most of OPG’s power of attorney staff are working from home and processing PoAs electronically. For the foreseeable future the majority of registrable PoAs will be processed electronically even when sent via the postal system.

In practice, this means OPG will process PoAs electronically when (1) the registration criteria are met, and (2) where an email address has been provided for the sender or granter. If an email address has not been provided, OPG will contact the sender to obtain this.

When a PoA is registered electronically:

  1. OPG will email a PDF version of the certificate of registration, and a copy of the registered PoA, to the sender. The certificate will have a crest watermark running through it, as will each page of the PoA. (This certificate will be the same as the certificate issued via EPOAR.)
  2. When the PoA is printed, each page will require to be signed by one of the following people: the granter, solicitor, stockbroker or an authorised person for the purposes of the Legal Services Act 2007.
  3. If the granter or the specified person has not provided an email address, their documentation will also be emailed to the sender. It is appreciated this is not ideal; however given the circumstances this is the best solution that can be offered at present.

This is an emergency measure which allows OPG to maintain the registration service.

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