Update from the Office of the Public Guardian, covering remuneration and VAT; guardian declaration form; Professional Guardians' Scheme; powers of attorney; solicitor attorneys

Remuneration and VAT

Professional guardians are asked to note that VAT should not be added to remuneration.  Remuneration is calculated by OPG on the approval of an account and the amount set is the total amount that can be taken from the adult’s estate.

For accounts submitted from 1 November 2021 onwards, professional guardians charging VAT on their goods and services must take VAT from the total amount awarded.

Professional guardians are reminded that remuneration should be taken within 12 months from the date it was awarded. Where remuneration has accrued, guardians should contact OPG.

Lay financial guardian’s declaration form

Since 29 March 2021, prospective lay guardians are asked to complete a declaration form early on in the guardianship application process.

The form seeks information about the lay guardian’s circumstances and outlines what is expected of them if appointed as guardian. This part of the process allows prospective lay guardians to agree to the responsibilities of the role prior to any order being made by the court. It also provides the court with adequate information to assess fully the prospective guardian’s suitability.

Solicitors are reminded that the declaration form should be provided to their client at the outset or civil legal aid stage. The form should be completed by the potential guardian and then sent to OPG along with intimation of the summary application.

OPG asks that solicitors familiarise themselves with this process as they play a pivotal role in ensuring the court is provided with sufficient information.

When OPG receives the completed form it sends a copy to the court along with a letter outlining any observations. OPG will also observe to the court whether the form was completed and returned. When appropriate, OPG will direct the sheriff to any sections of the form which may promote the suitability of the prospective guardian or which may flag a concern.

For further information please email: opgorders@scotcourts.gov.uk

Changes to the Professional Guardians’ Scheme

The Professional Guardians’ Scheme has been running for four years. In 2019 OPG carried out an engagement exercise with nominated scheme owners (NSOs) at each firm to find out more about the user experience.

The feedback gained, along with OPG’s own insight, has provided valuable information which will help improve the scheme. OPG has been working with this information over the past few months, and as a result the following improvements will be implemented in October 2021.

Terms and conditions have been drafted to help with the management of the scheme and to outline the responsibilities of scheme members. These are available on OPG’s website.

OPG will allocate a designated member of staff to each NSO and firm. OPG review officers will be in contact with NSOs over the next few weeks to introduce themselves and to outline their role, which is primarily to give guidance and feedback to the firm.

Updated Professional Account Declaration form: the summary and declaration has been updated to enable key information to be provided.

OPG is also in the process of developing an online training course to replace the mandatory training workshop. It is anticipated this will be available towards the end of the year. For more information on any of the above please contact opgprofguascheme@scotcourts.gov.uk

Update on the PoA position

The OPG has recruited an additional, sizeable, cohort of permanent staff to address the issue of delays in processing powers of attorney (PoA). Delays have been caused by large increases in volumes of PoAs and case-related mail, and exacerbated by the impact of the COVID-19 pandemic. OPG’s new staff are currently undergoing training, which means turnaround times will progressively improve over the latter part of this year and early 2022.

In addition, an exercise will be run later this year to recruit staff on a fixed term basis.

Expedited PoAs

It is appreciated that in some cases there is a genuine need for a PoA to be processed urgently due to the granter’s circumstances. OPG offers an expedited registration service in recognition of this. To request this service OPG requires key information and the reason why the PoA is to be given priority over other PoAs.

If your request is granted the expedited PoA will usually be processed within five working days. There is no need to contact OPG to ask for the status of the PoA: this may inadvertently delay the PoA from being processed on time.

Solicitors acting as attorneys or substitute attorneys

Solicitors are often appointed as an attorney or substitute attorney. However, if a professional is no longer willing to act or take up the appointment, e.g. they leave the firm, they should advise their clients at the earliest opportunity. This allows for appropriate arrangements, and/or amendments to be made to deeds while the granter has capacity and is in a position to approve a change.

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