Adults with Incapacity Amendment Act: consultation

The Office of the Public Guardian (OPG) has a range of functions under the Adults with Incapacity Act (AWI Act). It is responsible for registering powers of attorney and maintaining a Public Register of all continuing and welfare continuing and welfare power of attorneys. It also supervises the actions of those appointed in terms of the AWI Act to manage the property and financial affairs of adults who lack the capacity to carry out these functions for themselves and provide advice and support.

We propose giving OPG additional powers to increase the safeguards when registering a power of attorney. We propose that there should be provision for the OPG to refuse to register a power of attorney if there is a dispute about capacity. OPG should be able to call for additional capacity reports if there is a reasonable cause. This would allow OPG to pause registration and resolve the issue of capacity/incapacity administratively. If OPG refuse to register the power of attorney, then either party will be able to seek directions from the Sheriff themselves for the matter to be determined by the court.

The same should apply to registration of a revocation notice under section 22A. Revocation means that the granter of the power of attorney can cancel the power of attorney if certain conditions are met and the OPG has to update the register with that information. This shows if power of attorney is active or not.

Section 22A of the AWI Act sets out the process of revocation of a continuing or welfare power of attorney. This needs to be in writing and must include evidence  that the granter was not acting under undue influence and understood the purpose and effect of power of attorney. We propose that the same changes should apply to a revocation notice as above.