Amendments to the Power of Attorney Act aimed at fighting property fraud were on Monday night passed in the National Assembly with support from the opposition.
A key amendment is the requirement of two forms of photographic identification for both parties in the transaction.
The bill, which was first read in December, once enacted will also see individuals being fined and facing incarceration if they are caught breaching the new requirements in the application process.
According to the Explanatory Memo-randum of the bill, the agreement between the two parties must be done together before a Notary Public or Magistrate. Both parties in the power of attorney transaction – the ‘Donor’ and the ‘Donee’ – must present two forms of original photographic identification as well as photocopies of the documents to establish and verify their identity.
The amendment states that when the party who is giving power (Donor) is not in Guyana, they, too, must appear before a Notary Public or Magistrate in their jurisdiction with the same documents. The process of transferring powers must be witnessed signed and sealed by a Notary Public or Magistrate. In the case of the power giver being out of the country, there must be a separate witness statement from one of the subscribing witnesses and once the process has been completed, the documents must be submitted and filed with the Deeds Registry.
The amendments seek to insert three additional sections (Sections 12, 13 and 14) into the Act which cater for the prosecution of dishonesty, prosecution of a Notary Public who is suspended, removed from practice or whose name is not on the register and performs any act pertaining to the office of a Notary Public, and gives powers to the Minister to make regulations to enhance the bill.
Under Sections 12 and 13, it is proposed that a person can be found answerable for offences of dishonestly obtaining or using a power of attorney for financial gain or to cause loss to the principal.
The amendments propose a fine of $5 million and imprisonment for up to five years for anyone including the Notary Public and Magistrate who fail to comply with any duty imposed on them in the verification and identity process.
Despite winning the support of the opposition, members on that side of the House meeting at the Arthur Chung Conference Centre abstained from voting. APNU+AFC Members Haimraj Rajkumar and Khemraj Ramjattan objected to the requirement of two forms of photo identification in the application process and called for it to be revised. They argued that it would be burdensome to persons who live in rural Guyana and who do not possess a second form of identification.
Attorney General Anil Nandlall after the second reading of the bill told the House that the extant legislation is flawed and with these amendments government is seeking to correct the wrongs and offer better protection for property owners in Guyana.
“This Bill seeks to mandate a regime of measures which the parties to such an instrument and the person before whom it is executed, must follow for the instrument to be valid,” the AG said before pointing out that the Deeds Registry is prohibited from registering, filing or recording in the Registry, any Power of Attorney that does not comply with this new regime of measures.
According to the Nandlall, who is also the Minister of Legal Affairs, legislators in the past sought to correct some of the irregularities whereby persons were becoming owners of properties without the consent or knowledge of the original owners.
“Several administrative decisions were taken and policies implemented at the Deeds Registry to strengthen the system there, however that is not enough…” he stated, before telling the House that the cases of fraudulent property transactions continued to occur.
Additionally, he stated that these amendments are still necessary as the government and the parliament are heeding the admonitions of the Caribbean Court of Justice.
“Unfortunately, in many cases those who prepare legal instruments such as Powers of Attorney are either complicit in the fraud or are negligently executing their statutory functions and that contributes significantly to the creation of fraudulent and illegal instruments..,” Nandlall added.
Ramjattan posited that the requirement for two forms of identification will force individuals who will like to execute a power of attorney to seek a second form of identification.
“I noticed the lines are so long, the passport office but even so people in the rural areas and the remote areas they hardly would have the time and the effort and the expenditures of money to come to get that passport. So I am urging that that this will be to start (with) at least one photograph identity document”.
Ramjattan opined that with the level of penalties included in the bill he does not believe a second form of identification is required.
The AG in rebuttal said that while persons have objected to two forms of photo identification as burdensome, he believes it is a needed measure as they seek to eliminate forgery in transactions.
“We have seen cases with forged ID cards. You can have a forged ID card but it is also difficult to have a forged driver’s licence or passport at the same time. We are simply making it difficult for those who intend to commit fraud to do so… we do not intend to dilute the importance of that,” he argued.
He further stated that all forms of the power of attorney will have to comply with the new requirements. There were some categories of power of attorney that were not required to comply with registration requirements.
“This act might be small in size but it has deep and far reaching ramifications for the protection of properties in Guyana…”, he added.
Rajkumar in his contribution lauded the inclusion of clause 4, sections 12 and 13 of the amendment bill which seek to protect the donor from any fraudulent or dishonest acts by an attorney or notary public.
In support of her colleague, Minister of Education Priya Manickchand said the bill eliminates the risk of forgery from all sides and protects the donors especially those living abroad. She posited that there isn’t just the requirement for two pieces of photographic identification but the need for witnesses from both ends, thereby safeguarding against attempts of forgery and fraud.
