Given the high instance of fraud involving the use of Power-of-Attorney documents, the Guyana Government will be defending a series of changes to the legislation to strengthen the protection of people’s property, thus making it more difficult for fraudulent transactions to be executed.
The Power of Attorney (Amendment) Bill 2021 was tabled in the National Assembly on Monday, and will come up for debate at today’s sitting.
During his weekly programme – Issues In the News – Attorney General and Legal Affairs Minister Anil Nandlall SC, explained that these changes to the Power of Attorney Act were necessary, especially given the large number of cases whereby persons are defrauded of their property either by persons to whom they have entrusted their Power of Attorney or persons who fraudulently create such documents.
In fact, only recently the Caribbean Court of Justice (CCJ) had called upon the Guyana Government to put systems in place to protect property owners.
“We have had in Guyana an unusually high instance of fraud as it relates to immovable property. Every Guyanese are aware of a story where someone, either living in Guyana or living outside of Guyana, whose property has been defrauded… The Government is responding,” the AG stated.
Among the proposed amendments is one requiring the donor and donee to both appear together personally before a Notary Public or Magistrate with two original photo identification documents each, that is, identification cards, passports or drivers’ licences, as well as copies of each document to establish their identities. In cases, where the donor is abroad and the donee is in Guyana, then they are both still required to appear before a Notary Public or Magistrate in their respective countries with the required identification documents.
The type of ID and ID number are also required to be placed on the Power of Attorney document.
Further, the Power of Attorney document must be signed by both the donor and donee in the presence of the Notary Public or Magistrate along with two witnesses, also in the presence of each other, before the document is signed, sealed, or stamped by the Notary Public or Magistrate. For donors overseas, a separate witness statement can be given.
The amendments further detail that the Power of Attorney document cannot be registered, filed, or recorded in the Deeds Registry uncles the document has copies of two photo identification documents of the donor and donee, and a separate witness statement certified by, signed and sealed or stamped by a Notary Public or Magistrate attached.
In fact, amendments to the Deeds Registry Act were also tabled to reflect the changes in the Power of Attorney legislation.
Moreover, these changes to the Power of Attorney Act carries a penalty of a fine of $5 million and five years’ imprisonment for those contravening the law. The fine would increase to $10 million for corporate bodies found liable of committing this act.
This punishment will be imposed on: anyone who wilfully certifies or propounds any false statement relating to a Power of Attorney, or anyone who fails to comply with any of the new requirements; or a Notary Public who is suspended, removed from practice or not on the register but who still performs functions in that capacity.
Similarly, the changes to the Deeds Registry legislation also carry a penalty of a $5 million fine and five years’ imprisonment for those who do not comply with the new requirements when registering, filing and recording a Power of Attorney.
“So, there’s a heavy penalty and we hope that this set of amendments will go a far way in strengthening our law to ensure that people’s property are a little more secured, and it would become now appreciably more difficult to use a Power of Attorney to commit a fraud and not be detected,” the Attorney General contended.
According to Nandlall, during his programme, these measures are necessary since it is often very difficult to retrieve properties that are fraudulently disposed of using the Power of Attorney document. He pointed out that this was especially the case where the donor did in fact assigned the donee as the holder of the Power of Attorney, but without the intention to sell the property in question, even though the document might have that listed as the purpose.
To this end, the Attorney General is pleading with property owners in Guyana and abroad to constantly check the Official Gazette where transports are required by law to be advertised before they are passed.
Earlier this year, Minister Nandlall has opined that the Official Gazette, which is online-based, should be accessed at public offices countrywide, and even at some commercial entities, as well as be readily accessed through social media platforms. He also mentioned the need to extend the required timeframe for these advertisements, in order to allow persons to access and scrutinise the Gazette.
Further, the Legal Affairs Minister also spoke of the need to enhance the quality of persons being made Notaries Public, as well as the processes executed at that level.
At the time, he was lamenting, during a Government-televised programme, about the alarming increase in the number of property fraud cases in Guyana and Government’s intention to strengthen the various legislation that prevent such occurrences.
