Article 12 of the UNCRPD emphasises that every available support must be made to persons with disability in order for them to exercise their legal capacity. But it also requires measures that relate to the exercise of legal capacity must provide safeguards to prevent abuse in accordance with international human rights law. These measures must respect the rights, will and preferences of the person, be free of conflict of interest and undue influence, be proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to review by a competent, independent and impartial authority.
To meet these requirements, there is our proposal for an additional principle for the AWI Act stating that there shall be no intervention in the affairs of an adult unless it can be demonstrated that all practical help and support to make a decision about the matter requiring intervention has been given without success. This will be underpinned by our work on developing a strategy for support for decision making in Scotland.
But we consider that even with increased provision for support for decision making, there will always be a need to provide guardianship orders for those persons who, despite all practical support being given to them, lack the capacity to make decisions on certain matters for themselves.
However guardianship powers should be sought only where the adult is unable to take their own decisions and should take into account the adult’s will and preferences as far as they can be ascertained.
Guardianships should, at present, meet most of the requirements of Article 12, but in speaking to people about the way the system works just now, we have been told that sometimes wide ranging powers are being granted unnecessarily to guardians to avoid the need to return to court, and go through another complex process in the event of the adult’s needs changing. We have also been told that the process of obtaining a guardianship is generally not inclusive of the adult. The adult very rarely attends court and is often unaware of the process.
So we have suggested a form of graded guardianship that can be more easily tailored to the adult’s circumstances, that can apply for only the time necessary and with safeguards that will be proportionate to the degree to which such measures affect the person’s rights and interests.
In suggesting the changes that are in this consultation, we are aiming to make the application process simpler and more user friendly, as well as making it easier for an adult to attend a hearing on their case, if they so wish. In addition, in Chapter Eight we consider proposals for changing the forum for AWI cases from the Sheriff Court to the Mental Health Tribunal for Scotland.
Guardianship law as it stands (s.57-79A)
Presently, guardianship cases are decided by the Sheriff Court which is most local to where the adult lives. Guardians are appointed by the Sheriff.
An application to court is generally made by a solicitor and will ask the Sheriff to appoint the guardian(s), listing the welfare and financial powers which are requested. The application will give a brief background of the adult and the reasons for the guardian’s appointment. It will also list any interested parties, in order that the Sheriff can instruct that they are sent a copy of the application.
The application has to contain certain reports as follows:
- A report from a doctor, generally the adult’s GP, from an examination carried out not more than 30 days before the lodging of the application. This should state that the adult is incapacitated in relation to the powers sought.
- A report from a doctor who has specialist experience in the diagnosis and treatment of mental disorder. Again, the examination has to be carried out not more than 30 days before the lodging of the application and it should state that the adult is incapacitated in relation to the powers sought.
- Where the application relates to welfare, a report from a Mental Health Officer containing their opinion as to the appropriateness of the order sought. This will be based on an interview and assessment of the adult carried out no more than 30 days before the application is lodged. It will also contain their opinion on the suitability of the nominated individual to be guardian. In coming to their views, the Mental Health Officer will consider each of the principles of the Adults with Incapacity (Scotland) Act 2000 ( AWI Act) and seek out the views of the adult and interested parties.Where the application relates only to the property and financial affairs of the adult, then a report from a person who has sufficient knowledge to make such a report is required. This will follow the same format and have the same requirements as the Mental Health Officer report.
Once the application is received at court, it will then be sent back to the applicant with a court hearing date and an instruction from the Sheriff to send the application to interested parties, allowing them a reasonable time to respond before the hearing is due.
All interested parties can attend the hearing and have their say on the application. The Sheriff can continue the matter to another hearing for a number of reasons. These include ensuring all interested parties have received the application and had enough time to respond and to receive any further reports.
Once the Sheriff grants the guardianship he/she informs the applicant and the Office of the Public Guardian of the powers granted. If there are financial matters the Sheriff may well have set an amount of caution that the guardian has to find before acting. This is an insurance bond to protect the adult against misuse of their funds. Once the guardian has found caution then the Office of the Public Guardian will issue them with their certificate of appointment. If no caution is required then the Office of the Public Guardian will issue the certificate of appointment on receipt of the order from the Sheriff.
To address the concerns people have about the way guardianship works at present, we are proposing a change to a graded system of guardianship. The changes aim to create a system whereby it will be easier to seek only those guardianship powers that are absolutely necessary to safeguard the finance and welfare of an adult, leaving the adult to make many other decisions about their lives.
We are suggesting a move to 3 grades of guardianship covering both financial and welfare matters, with the complexity of the application increasing as the level of powers sought increases.
A Grade 1 guardianship would be used for day to day welfare matters and for managing simpler financial affairs under a threshold to be set by regulations.
A Grade 2 guardianship would be used for managing property and financial affairs above the threshold set by regulations, as well as more complex welfare needs such as a move of accommodation where there might be a significant restriction on a person's liberty.
A Grade 3 guardianship would be used for all the financial and welfare powers of Grade 2 and is used where there is some disagreement between interested parties, including the adult, about the application.
Chapter 8 seeks views on what forum should be used for cases under AWI legislation going forward so in this chapter we refer to either the sheriff or the tribunal considering cases. These options are discussed in more detail in the next chapter.
Grade 1 Guardianship
When speaking to people, we have often heard that in some situations the present guardianship process is too onerous for the powers that are required. We think there is room in the guardianship system for a simple administrative application, which will be quicker to obtain and will be suitable for a significant proportion of guardianship applications.
For example, if a tenancy agreement needs to be signed, or a person needs the intervention of a guardian to manage an estate where there are only state benefits to consider, the current system is very cumbersome. And if a guardianship is required where a child with severe learning disabilities is turning 16, but is still being cared for by parents, again the current process can be complex and burdensome for families.
We are proposing that a wide range of welfare and financial powers can be applied for under a simple grade 1 guardianship application. Only the powers that are absolutely required to address the adult’s needs should be applied for, but at grade 1 it will not be possible to apply for authority to change the adult’s accommodation, which includes moving the person to a care setting, selling or purchasing housing for the adult, or dealing with financial estates over a threshold to be determined by regulations. We consider in most cases however, the signing of a tenancy agreement would be a matter that could be managed by a grade 1 guardianship.
All interested parties must agree to the application for it to be granted and most importantly, the will and preferences of the adult must as far as is possible, be shown to be in step with the application.
It is proposed that in most cases, a grade 1 guardianship order may be applied for without formal legal advice. We intend that a standard application form, available online and accompanied by certain reports would be submitted by the person applying to be guardian, to the Office of the Public Guardian ( OPG). Of course legal advice could be sought if required and we intend that as now, solicitors could also apply to be a guardian at this grade themselves.
For all applications, a certificate of incapacity will be required, stating that the adult is incapable in relation to the powers sought. If only financial powers are required, then an OPG guardian’s declaration will be required. If both welfare and financial powers are sought then a local authority social work report will be required as well. We provide more detail on this in the following paragraphs.
Requirements for Grade 1 Applications
Our proposal is that an application for grade 1 guardianship will be made by a standard form which will be available online and can be completed by the applicant without the need for legal advice.
The form will contain a list of the welfare and financial powers available at grade 1 and the applicant will select the powers they seek. The details of the applicant, adult, guardian(s), nearest relative and interested parties would also require to be entered in the form.
As this is an administrative process, there will be no discretion on the part of the OPG to decide if any additional powers should be suitable for grade 1.
In addition to the completed application form, the following documents will also be required:
OPG guardian declaration
This is a questionnaire from OPG that the applicant would have to complete. The purpose of this is to assess the suitability of the applicant to manage the adult’s finances. It will consider the applicant’s current financial circumstances and their awareness of the duties of a guardian and preparedness to take these duties on.
Local Authority Social Work Report for Guardianships Seeking Welfare Powers
We suggest that a local authority social worker would be able to provide a report commenting on the necessity of the application in relation to the appointment of the welfare guardian and also in relation to the AWI principles. For applications that are only seeking financial powers, then a local authority social work report will not be required.
Given that the adult should be incapacitated in relation to the powers sought, there needs to be proof of this incapacity at each level. Powers sought would have to be specified at each level and therefore the incapacity certificate should refer to the powers chosen, in order to make the incapacity decision specific. We propose that the class of people able to sign this certificate could be extended to include a wider range of professionals with appropriate training. We have asked for views on this in Chapter Six.
Duration of the order
We propose that given the simpler nature of the application and the powers requested, an initial grade 1 guardianship application can only be granted for a maximum of 3 years. The applicant will be required to enter the reason for the application and how they have complied with the principles of the Adults with Incapacity legislation, in particular what they have done to ascertain the adult’s will and preferences. This will help the interested parties on receipt of the application, to see if it corresponds with their knowledge of the adult’s circumstances.
Once OPG receive the application and they have checked that all reports are in place, then they will return the documents to the applicant for them to send it to interested parties, including the adult. Interested parties are served with a copy of the application and will be the adult, the nearest relative of the adult, the primary carer of the adult (if any), any guardian, continuing attorney or welfare attorney of the adult who has any power relating to the application or proceedings, the Public Guardian, the local authority and the Mental Welfare Commission (where appropriate). Once the applicant has done this, they will have to send proof to OPG.
If for any reason it was considered by the applicant that that the adult should not be sent the application, then the application should automatically be transferred to a Grade 3 application because of the significance of omitting any views of the adult from the process. At grade 3 a certificate from a s.22 doctor stating that receipt of the application would cause a serious risk to the adult’s heath will be required in order that the Sheriff or Mental Health Tribunal can consider the matter. This would be made clear within the guidance for Grade 1 applications.
Interested parties will get an opportunity to raise any concerns they have about the application. The local authority, will also be notified of every application, which will add an additional safeguard as they will be able to advise if they are aware of the applicant and whether they have any concerns about him or her. Interested parties would be given 21 days to lodge any objections. If there were any objections then the case would be referred to a full legislative hearing for consideration. Additionally, if the adult or interested parties requested a hearing, then the application should be considered by a full legislative hearing.
If there are no objections then the application may be granted after the 21 day period.
Example Powers For Grade 1
|Grade 1 – Administrative|
|We propose that a list of fixed powers as follows be available in an application form for the applicant to choose from:|
To decide what day to day care may be appropriate for the adult.
To consent to any medical treatment not specifically disallowed by the Act or procedure or therapy of whatever nature and provide access for that, or refuse such consent.
To decide, alone or with others, on the level of care which the adult may require.
To make such decisions regarding the adult’s social and cultural activities.
To exercise any rights of access the adult has in relation to personal data and records.
To arrange for the adult to undertake work, education or training.
To take the adult on holiday or authorise someone else to do so.
To enter into a tenancy agreement for the adult, including negotiating, concluding and implementing such an agreement.
To open, close, operate, any account containing the adult’s funds including those held in common with other persons to a maximum value to be determined by regulations.
To claim and receive on the adult’s behalf all pensions, benefits, allowances, services, financial contributions, repayments, rebates and the like to which the adult is entitled.
To make an application for self-directed support on the adult’s behalf; To claim and receive self-directed support in order to purchase care services appropriate for the adult, to employ a personal assistant or contract with a care provider and pay for services and care utilising self-directed support payments and arrange for employer’s liability insurance on the adult’s behalf.
To sign and endorse any cheques, deposits, receipts or bank drafts issued and to be issued in the adult’s name or made payable to the adult.
To sign and deliver deeds or documents
To make all tax returns and adjust and settle any claim for tax.
To be allowed financial information concerning the adult.
To require disclosure any document or information regarding the adult, however confidential, including testamentary documents.
To pay the adult’s household expenses.
To effect, pay the premiums on, alter or surrender any insurance policy.
To buy, lease, sell and otherwise deal with any interest the adult may have in property of any kind or description (excluding heritable property – houses, flats etc) and wherever situated.
To borrow and grant security for any sum and to pay the interest and capital on any loan taken out by the adult on the adult’s behalf.
To receive or renounce any testamentary or other entitlements; to grant Deeds of Covenant or make other provision for the adult’s estate; to set up any form of Trust.
To pay for private medical care and residential care costs.
To pay any debt or claim owing by or to the adult.
To make gifts on behalf of the adult, subject to the authorisation of the public guardian, including any limits on the size of such gifts or the potential recipients.
To pay for the adult to go on holiday and for the expenses of any accompanying carer/carers.
To purchase out of the adult’s income or capital, a vehicle or any other equipment which may be required for the adult’s benefit.
To employ Bankers, Brokers, Solicitors Counsel, Accountants, Managers, Factors or Agents of any kind for the management of any of the adult’s affairs, other than delegating powers to run the guardianship, at the usual professional rate of payment.
To implement such tax planning or similar arrangements as may deem suitable.
To incur expenditure on others as, in judgement, acting reasonably, the adult would have done if consulted or able to be consulted; including expenditure for any children or other dependants of the adult.
Grade 2 Guardianship applications
We intend that grade 2 guardianships will be available for people who need help with perhaps a more complex set of needs and in particular, who may need to move accommodation. In addition grade 2 guardianships will be required for the management of larger estates, above the grade 1 threshold .
We are suggesting that all the powers that are available at grade 1 can be sought at grade 2, as well as the ability to ask for any other power that might be deemed necessary. In particular, it will be possible to seek powers that may be needed to manage financial estates of all values at this level, such as powers relating to the sale and purchase of housing. The sale and purchase of housing will be subject to the consent of the Public Guardian. If an adult needs to move accommodation, and that move will result in significant restrictions on a person’s liberty, then authority for such a move may be sought under a grade 2 application. An independent medical report will be required in addition, stating the necessity of such a move.
Similarly if changes are being made to a person’s care regime, which will result in significant restrictions on a person’s liberty then authority for such changes may be sought under a grade 2 application.
As is the case with applications at grade 1, all interested parties would have to agree to the application, with the will and preferences of the adult being sought and needing to be in line with the powers sought. Interested parties are served with a copy of the application and will be the same as in grade 1, with the addition that the Sheriff or legal tribunal member can direct any other person to be served with a copy of the application. If any of the interested parties, or the adult themselves do not agree with the proposals, then the application would have to be made at the higher grade 3 level.
The proposal for grade 2 applications, is that the application would be examined by either a Sheriff in chambers or a legal member of the Mental Health Tribunal. This would be a paper only exercise, with either of the two looking at the documents submitted and coming to a decision, without a hearing.
Unlike at grade 1, where there will be a standard application form to be completed, a grade 2 application will require a summary application to the court or the tribunal. There would be no template powers at this grade and it is envisaged that solicitors would be involved in drawing up the powers required. Again it is important that only the powers required are sought. Each application should be unique to the needs of the adult. We do not intend there to be an application form at grade 2. The details contained in the application form at grade 1 should be contained in the application to the court or Mental Health Tribunal.
Reports required for Grade 2 applications
For all applications at this level, we propose that one incapacity certificate signed by a s.22 doctor is required, along the same lines as the present guardianship incapacity certificate. The difference would be that a second medical practitioner certificate would not be required.
OPG guardian declaration
For applications seeking financial powers, an OPG declaration will be required. This would be a separate form to be completed and submitted along with the application The purpose of this is to assess the suitability of the applicant to manage the adult’s finances. This will be considered from the perspective of their current financial circumstances and also from their awareness of the duties of a guardian and preparedness to take these duties on.
Mental Health Officer Report when welfare powers are sought
For those applications where welfare powers are sought, we propose that a mental health officer’s report is required along the same lines as present guardianship applications. The report should consider the suitability of the proposed welfare guardian and the powers proposed. The Mental Health Officer would also require to have consulted the nearest relative, primary carer and any continuing/welfare attorney or guardian or named person. Interested parties are omitted from this requirement, to reduce the extensive number of reports that are currently required in some cases.
For those cases where a change of accommodation is required, and:
- The adult is unable to consent to the change of accommodation
- The change of accommodation will result in the adult being subject significant restrictions on their liberty
then the medical report prepared by the s.22 doctor, will be required to make specific comment on the necessity of the change in accommodation and the restrictions that will be in place, are necessary for the benefit of the adult.
If the move is inconsistent with the will and preferences of the adult, then the matter must be considered by a full hearing as with a grade 3 guardianship application.
Duration of the order
The length of the order would be requested in the application and we propose a maximum of 5 years for a grade 2 application.
The applicant will be required to give the reason behind the application and how they have complied with the principles of the Adults with Incapacity legislation, including in particular what they have done to ascertain the adult’s will and preferences.
Once the Sheriff Court or Mental Health Tribunal receive the application and they have checked that all reports are in place, then they will return the documents to the applicant for them to send it to interested parties, including the adult.
If for any reason it was considered by the applicant that that the adult should not be sent the application, then the application should automatically be referred to grade 3 because of the significance of omitting any views of the adult from the process. At grade 3, a certificate from a s.22 doctor stating that intimation would cause a serious risk to the adult’s heath will be required in order that the Sheriff or legal member of the Mental Health Tribunal can consider the matter. This would be clearly set out in guidance for Grade 2 applications.
If there is any disagreement in relation to the application, for instance from the adult or other interested parties, then a full hearing should be convened.
And as with grade 1 applications, if an adult or interested party requests a hearing, then the application should be considered by a full hearing.
A single legal panel member or Sheriff in chambers would decide on whether the application should be granted and would be sent the application, along with any objections or queries, by the administrative staff after the 21 day period had expired.
If there are any objections the legal panel member/Sheriff would refer the matter to be considered by a full hearing. If there are no objections, or if the objector is now satisfied, then the application could be granted after the 21 day period.
We intend that grade 3 guardianship applications should be made only where the adult or any interested party might disagree with the application, whether it seeks welfare or financial powers or both. Interested parties at grade 3 are the same as grade 2, with the Sheriff or full tribunal directing if any other person should be served with the application. The application would be either be made directly at grade 3, or it would have been transferred from an application originally made at a lower grade. The process would be very similar to the existing guardianship process.
Where OPG, local authority or Mental Welfare Commission was referring a matter to court following an investigation this would be treated as a grade 3 application.
At grade 3 there would be an application to Sheriff Court or the Mental Health Tribunal as in a grade 2 application.
OPG guardian declaration
This would be a separate form to be completed and submitted along with the application as in grade 2.
Mental Health Officer Report where welfare powers are requested
This would be the same process as for grade 2 applications.
This would be the same process as for grade 2 applications.
Medical report where authority to change of accommodation is sought
Again this would be the same process as for grade 2 applications.
Duration of the order
The length of the order would be requested in the application and we propose that a maximum of 5 years should be available at grade 3.
The applicant will be required to enter the reason behind the application and how they have complied with the principles of the AWI legislation, including ascertaining the adult’s will and preferences.
Intimation at grade 3 would be the same as for grade 2 applications but the difference would be that a full hearing at the Sheriff Court or a 3 person Mental Health Tribunal hearing will consider the case.
Any party to the case can make an appeal.
We propose that appeals from administrative decisions made by the OPG at grade 1 will be to either the Sheriff with a court hearing, or to the 3 member Mental Health Tribunal. This can be on matters of fact or law.
Appeals from a decision made by a Sheriff at grades 2 and 3 will be to the Sheriff Appeal Court. This can be on matters of fact or law. The decision of the Sheriff Appeal Court may be appealed, with the leave of the Sheriff Appeal Court or the Court of Session, to the Court of Session. Appeals at this level can only be on a point of law.
Appeals from a decision made by the legal member of the Mental Health Tribunal will be to the three member Mental Health Tribunal and can be on matters of fact or law. Appeals from the three member Mental Health Tribunal (shortly to be the First-tier Tribunal for Scotland - Mental Health Chamber) will be to the Upper Tribunal for Scotland and also can be on matters of fact or law. Decisions of the Upper Tribunal for Scotland may be appealed, with the leave of the Upper Tribunal for Scotland or the Court of Session, to the Court of Session. Appeals at this level can only be on points of law.
Transfer to another Grade
If an application is made for example at grade 1 and it is considered by the OPG that an application at a higher grade is necessary, this should be as simple as possible and should not involve the applicant going back to the beginning again. The extra reports required at the higher level of application should be all that is needed, together with an explanation from the OPG, court or tribunal as may be as to the reason for the change in the application to a higher level.
In the same manner, if an application is made at the higher grades of 2 and 3 and the Sheriff, legal tribunal member or full tribunal consider that it is suitable for a lower grade, then the application should be sent to that grade. As the requirements for a higher grade are more stringent, it will automatically satisfy the lower grade requirements. For example, if all parties have decided that they all agree with the application made at grade 3 it could be considered that a grade 2 application would be more appropriate.
Presently the Sheriff may require a financial guardian or intervener to find 'caution' (pronounced ‘cayshun’). This is an insurance bond to safeguard the adult from any loss that may be caused by the actions of the person authorised under the order. The Sheriff can use his/her discretion to dispense with caution in certain circumstances.
In the graded guardianship system we propose that at grade 1 all cases, where there is any financial element, will be required to obtain caution, which may be by a low value, one off, life time bond.
We propose that cases at grades 2 and 3, which have any financial element, will require cautionary cover with judicial discretion to dispense with this on cause shown.
Grade 1 Finance and Welfare Powers
Andrew is a 16 year old adult who received a diagnosis of childhood autism when he was 3 years old. This is a life-long condition. He is unable to use language, gesture or symbols to communicate and initiates almost nothing. He requires constant support with personal care both day and night. He can’t read or write and has no insight into financial matters. He requires 24 hour care and supervision.
Andrew has just left a school placement and now lives at home with his parents. They now need to think about alternative care arrangements for Andrew and together with social work are considering devising a care plan with the intention of addressing his needs. Andrew receives Disability Living Allowance of £134.40 per week and has one bank account with approximately £3,000.
Andrew’s parents have been advised by their child social worker that now he is 16 he is no longer a child and they will require to have some legal authority if they wish to carry on taking care of him in the way that they have been doing. They are finding this hard to understand as they are his parents and have always taken care of him. They resent the interference of ‘authorities’. The social worker is aware of guardianship and has pointed them in the direction of the Office of the Public Guardian website where they can find further information.
On looking at the information they find that they can apply for a grade 1 guardianship and do this themselves for the following reasons:
- Andrew has funds below the grade 1 threshold. They will be able to manage the funds in his bank account and manage his benefits using the guardianship
- They wish to apply for self-directed support payments to pay for Andrew’s care services.
- Andrew is unlikely to be moving from home in the near future and the range of welfare powers available at grade 1 would enable them to deal with his day to day welfare needs.
The parents find the grade 1 guardianship application form on OPG website, and consider from the powers available at this grade, what powers they might need to support Andrew. They select the powers they think they need, then approach the GP who has had contact with Andrew throughout his life and is well aware of his capabilities. She, using her own knowledge of Andrew and consulting previous medical diagnosis completes a certificate stating that he is incapacitated in relation to the powers the parents wish to take. The parents approach the social worker who has provided help and support to their son, and he is able to complete a form which comments on the necessity of the application in terms of the AWI principles and also their suitability as welfare guardians. Andrew’s parents then complete the form the OPG needs in relation to their application for financial powers for Andrew. This is also on the OPG website.
Having gathered all the forms together they send them off to OPG. They receive the forms back from OPG along with notification that they have to send copies of the form within a week to 2 other relatives they had named in the application, along with the Chief Social Work Officer of the local authority and the Mental Welfare Commission. The parents have to notify OPG once they have done this.
The notification also advises that if there are no objections for a 21 day period (they are given the final date) then the application will be granted subject to finding a bond of caution. After the 21 day period there are no objections and OPG send them a letter advising them that a bond of caution requires to be found.
The parents contact the cautionary company, organise a bond of caution and send this to OPG. OPG then send them a certificate of appointment for 3 years.
Grade 2 Financial Powers
Ethel is a 77 year old woman residing in a care home. Ethel had previously resided at home with the benefit of a care package, but after a bad fall her mobility deteriorated severely and she needed more support. At an early stage of her dementia, whilst Ethel was still able to make decisions with the support of her family, she decided to move to the care home she is in now.
Ethel now has a diagnosis of severe dementia. A doctor advises that she shows no awareness of her surroundings or circumstances. Her dementia has progressed such that she is now very frail and her ability to communicate is severely impaired. She has no verbal communication and only limited non-verbal communication. It is not possible to have a conversation about her finances or welfare and she can’t demonstrate that she can retain information or that she can use the information to make an informed decision. Ethel’s condition is progressive and indefinite.
Ethel has indicated that she is happy in her care home and has no wish to move. Ethel has a house worth £200,000 with no mortgage. She also has a bank account holding approximately £150,000. Ethel’s income consists of state and private pensions totalling £1500 per month. Ethel has been assessed as self-funding in relation to her care home fees, which are £4,000 per month. Ethel’s house is sitting empty and although it is not necessary in the immediate future to sell this in order to pay for care fees, it is likely to depreciate in value if it is left as it is for a substantial length of time.
Ethel’s son and daughter in law are interested in looking after her finances and in selling her house. Ethel has no other next of kin. They have been to a solicitor to seek advice about what to do and she has advised that in the absence of a power of attorney, they will require a guardianship order to manage Ethel's finances but no powers are required to manage Ethel's welfare at present. The solicitor is aware of graded guardianship and advises that they will require a grade 2 guardianship for the following reason:
- Ethel’s estate is above the grade 1 threshold (including her house)
Ethel’s son and daughter in law agree to employ the solicitor to make an application for a grade 2 guardianship, with the solicitor claiming her fees from Ethel’s funds once the guardianship has been granted.
The solicitor puts together a summary application to appoint Ethel’s son and daughter in law as joint financial guardians with the powers they will require to manage Ethel’s property and financial affairs. This will enable them to sell the house, pay Ethel’s accrued and ongoing care fees and use the remaining funds taking into account Ethel’s will and preferences.
Along with this Ethel’s son and daughter in law have to complete the OPG guardian’s declaration form in relation to their fitness to act as a financial guardian.
The solicitor also asks a s.22 doctor to complete a form certifying Ethel’s incapacity in relation to the powers sought by her son and daughter in law.
The solicitor then sends the summary application, OPG guardian declaration and incapacity certificate to the Sheriff in chambers / legal tribunal panel member.  She receives notification of intimation as in grade 1, which she duly carries out, returning notification of completion to the court/ MHT.
Once the intimation period is complete the Sheriff/ legal tribunal panel member looks at the papers in chambers/private and makes a decision on the case, in this case granting it. The solicitor receives notification that the case is granted, subject to a bond of caution being found for £350,000. The solicitor duly contacts the cautionary company, gets the bond of caution and sends this to OPG. OPG then send Ethel’s son and daughter in law their certificate of appointment as joint financial guardians.
Grade 3 Finance and Welfare Powers
William is an 84 year old man, widowed 5 years ago by his wife Mabel. William has severe dementia and stays in a care home, where he is settled. He goes on short outings to a day care centre.
William previously owned a farm business, together with associated buildings that have an estimated worth of £950,000. William does not have any direct descendants, however there are two parties who express a wish to be his financial and welfare guardians. Alastair was brought up with William and Mabel as their own child. William made a will prior to his diagnosis of dementia leaving his property and finances to Alastair. Alastair and his wife Cheryl have been involved in the adult’s life for many years and more recently have actively been involved in his care since his diagnosis of dementia.
The other party wishing to be appointed are Peter and Nicola. They are the half brother and sister of Mabel. They feel William was under undue pressure when he left his property and finances to Alastair and have indicated that they will contest the will. They take some interest in the adult’s life, although do not care for him daily, as Alastair and Cheryl do.
Alastair and Cheryl engaged a solicitor to look into guardianship as they were aware of the level of the adult’s estate and thought a solicitor would be required. The solicitor looked at graded guardianship and considered that ordinarily, considering the level of the adult’s estate, a grade 2 application would suffice. However, having heard the background and the inevitable disagreement from Peter and Nicola she considered that a grade 3 application would be required as regardless of the welfare requirements of William or the level of his estate, there was contention about the appointment of Alastair and Cheryl.
Alastair and Cheryl agree to employ the solicitor to make an application for a grade 3 guardianship.
The solicitor prepares a summary application to appoint Alastair and Cheryl as joint financial and welfare guardians with the powers they will require to manage William’s, welfare, property and financial affairs. This will enable them to sell the farm business and accompanying outbuildings, pay William’s accrued and ongoing care fees and use the remaining funds taking into account William’s will and preferences.
Along with this Alastair and Cheryl have to complete the OPG Guardian’s Declaration form in relation to their fitness to act as financial guardians.
The solicitor also gets a s.22 doctor to complete a form certifying William’s incapacity in relation to the powers sought by Alastair and Cheryl. She also engages a Mental Health Officer to complete a report on the appropriateness of the application.
The solicitor then sends the summary application, OPG guardian declaration, Mental Health Officer report and incapacity certificate to the court/Mental Health Tribunal ( MHT) in order for them to convene a court or tribunal hearing. She receives notification of intimation as in grade 1, which she duly carries out, returning notification of completion to the court/ MHT. Once the intimation period is complete the hearing takes place, with the Sheriff or tribunal panel members hearing the views of all interested parties. The Sheriff or tribunal panel then makes a decision on the case, in this case granting powers to Alastair and Cheryl. The solicitor receives notification that the case is granted, subject to a bond of caution being found for £950,000. The solicitor duly contacts the cautionary company, gets the bond of caution and sends this to OPG. OPG then send Alastair and Cheryl their certificate of appointment as joint financial guardians.
- Do you agree with the proposal for a 3 grade guardianship system? Please give reasons for your answer.
- Our intention at grade 1 is to create a system that is easy to use and provides enough flexibility to cover a wide range of situations with appropriate safeguards. Do you think the proposal achieves this? Please give reasons for your answer.
- Are the powers available at each grade appropriate for the level of scrutiny given?
- We are suggesting that there is a financial threshold for Grade 1 guardianships to be set by regulations. Do you have views on what level this should be set at? For example the Public Guardian requires that financial guardians have to seek financial advice on the management of the adult's estate where the level is above £50,000. Would this be an appropriate level, or should it be higher or lower?
- We are proposing that at every grade of application, if a party to the application requests a hearing, one should take place. Do you agree with this? Please give reasons for your answer.
- We have listed the parties that the court rules say should receive a copy of the application. One of these is ‘any other person directed by the Sheriff’. What level of interest do you think should be required to be an interested party in a case?
- We have categorised grade 3 cases as those where there is some disagreement between interested parties about the application. There are some cases where all parties agree, however there is a severe restriction on the adult’s liberty. For instance very isolated and low stimulus care settings for people with autism, or regular use of restraint and seclusion for people with challenging behaviour. Do you think it is enough to rely on the decision of the Sheriff/tribunal at grade 2 (including a decision to refer to grade 3) or should these cases automatically be at grade 3?
- Please add any further comments you may have on the graded guardianship proposals.
Renewal of a Guardianship order (s.60)
An application to renew a guardianship has to be made any time before the guardianship or renewal has expired. If an application has been made before expiry but not yet determined, then the original order continues until the renewal is decided upon.
A renewal requires:
- A summary application.
- One relevant medical practitioner’s (section 22 doctor) report regarding the adult’s incapacity dated not more than 30 days before the lodging of the application.
- A mental health officer report or Chief Social Work Officer report if welfare issues relate to inability to communicate (where there is a welfare element). This will contain the officer’s opinion as to the appropriateness of continuing the guardianship and the suitability of the applicant to continue to be the adult’s guardian. It should be dated not more than 30 days before the lodging of the application.
- A report from the Public Guardian if the powers relate to property and finance containing her opinion as to the applicant’s conduct as financial guardian and the suitability of the applicant to continue as the financial guardian.
Renewals in the graded system
The same factors taken into account when granting new applications should be applied when renewals are considered. Therefore the adult should have received every support to exercise their own decisions and actions throughout the guardianship and this knowledge can be applied to deciding what powers are suitable at renewal. The powers should be the least restrictive consistent with the purpose of the intervention and should be tailored to the adult’s circumstance.
We are aiming to ensure that the minimum necessary powers are sought and granted and it should be easy to move down or up the grades should circumstances change.
Grade 1 renewal at Grade 1
We propose the initial grade 1 application should consist of an application form, a social work report (for cases with a welfare element), an OPG guardian’s declaration (for cases with a financial element) and a certificate of incapacity.
For renewal at this grade there will have to be a renewal application form. If all the details are the same (interested parties, powers, length of time required etc) then it would make sense to be able to indicate this, so the applicant doesn’t have to complete the remainder of the form. If some things have changed, then the applicant could be instructed to only complete the relevant changed parts of the form.
The requirements would be as follows:
- A grade 1 application form.
- A social work report for cases with a welfare element.
- If property and finance is involved no OPG guardian declaration form would be required and instead the same brief report, as at present, from OPG could be required.
- A certificate of incapacity, (we are asking for views on which professionals might be appropriately placed to grant this certificate).
We propose that at grade 1 there is an initial maximum appointment for 3 years but this could be increased on renewal to a maximum of 5 years.
Grades 2 and 3 renewal at Grade 1
There will be cases where the initial circumstances warranted a grade 2 application, such as finances above the Grade 1 threshold set by regulations or moving the adult to accommodation where there may be restriction on the adult’s liberty. On renewal however these circumstances may have changed, so finances may be below the Grade 1 threshold set by regulations, or the adult may have moved and now be settled in their accommodation. These circumstances would warrant renewal at grade 1.
So, on renewal the requirements could be the same as an initial application at grade 1. The requirements would be:
- A grade 1 application form.
- An OPG report, as at present, on the opinion of the financial guardian’s conduct and the suitability of the applicant to continue as financial guardian will be required.
- A social work report for cases where welfare powers are sought.
- A certificate of incapacity.
Grade 1 renewal at Grades 2 and 3
There may be occasions at renewal where circumstances have changed such that a higher grade application may be required. For instance the adult may have inherited a property, may have to move accommodation or there may be contention about the renewal.
On each occasion the renewal requirements for grades 2 and 3 would be as follows:
- A summary application.
- An OPG report, as at present, on the opinion of the financial guardian’s conduct and the suitability of the applicant to continue as financial guardian will be required.
- A Mental Health Officer report where welfare powers are sought.
- A certificate of incapacity (from s.22 doctor).
- A medical report where a change of accommodation which may result in restrictions on liberty, is sought.
Changes to the adult’s circumstances may happen during the lifetime of the guardianship and not just at the time of renewal.
At present applications for variations are made to the Sheriff. The Sheriff considers the application and can vary the powers as requested. This is apart from where a welfare guardian is requesting property or financial powers and vice-versa. In those cases the present guardianship application process and relevant reports have to be adhered to.
Variations under proposed graded guardianships
We propose that the system should be similar under graded guardianship. The only difference would be to where the application is made. This would be governed by the same factors that govern the initial graded guardianship application.
For instance an adult with a grade 1 guardianship may require to add powers from the standard powers available at grade 1, which they did not already have. This would be an application to OPG using the existing application form. The applicant could indicate on the form those details they had provided previously and then pick the extra powers from the list. No guardian declaration form would be required for finances as that will have already been provided previously.
Or the adult may inherit property or require to move accommodation, which would require additional guardianship powers to deal with this. If there was no disagreement about the powers, then an application could be made for a grade 2 guardianship, which would require the application to be to the Sheriff or legal tribunal member. If there is disagreement, then the application would be made at grade 3, which would require the Sheriff or 3 member tribunal to hold a hearing.
Where a financial guardian was applying for welfare powers and vice versa, the application would have to follow the procedure for applying for a welfare guardianship or vice versa for a financial guardianship at the relevant grade, with the relevant reports.
Do you think our proposals make movement up and down the grades sufficiently straightforward and accessible?
Please give reasons for your answer.
Intervention Orders (s.53-56A)
The AWI Act gives power to the Public Guardian to supervise an intervener in the exercise of his/her functions relating to the property and financial affairs of the adult. Unlike guardianship, the Act does not detail the form of this supervision, nor give the Public Guardian discretion to determine the form. The Public Guardian cannot charge fees for supervision of interveners, as the idea is that the intervention order ends when the action is complete. For the same reason, there is also no scale of fees to be paid from the adult’s estate for the work of an intervener, as there is in guardianships. Consequently the extent of the Public Guardian’s involvement in such cases could at best be described as ‘monitoring’.
'The AWI Act does not give power to local authorities to supervise an intervener in the exercise of his/her welfare functions. The AWI Act does give the local authority the power to investigate complaints made in relation to a welfare intervener's exercise of their functions.'
Intervention orders are applied for in the same way as guardianships, with the same reports being required. The idea behind intervention orders is that they are to take specific actions or decisions, either welfare or financial, after which the order comes to an end. They are not designed for ongoing actions, that is what guardianships are for.
We have been told of an increasing number of intervention orders being granted with ongoing / open powers. These ‘quasi guardianship’ intervention orders are unsupervised.
The Act does not give power to the Public Guardian to ‘fix’ remuneration for an intervener. However, many of the orders which grant open powers also contain a power to permit the intervener to be paid. A guardian’s remuneration is fixed by the Public Guardian, proportionate to the estate value. There is no such constraint on an intervener’s award.
Intervention orders becoming graded guardianships
In order to address the issues above we propose that we repeal the provisions for intervention orders. What would currently be termed an intervention order would become a guardianship but with limited, defined, powers. The ‘intervener’ is then a guardian - application, supervision, duration and caution would all be catered for.
In the same way that intervention orders come to an end when the decision or action has been completed, we propose the same approach for guardianship powers that cover these specific decisions or actions.
For instance if the guardianship powers consist solely of specific actions or decisions that have an end (i.e powers that would previously have been in an intervention order), then we propose that the guardianship should come to an end in the same way that an intervention order would have.
There could be cases where there are some powers that have an end and others that are ongoing. In these cases we propose that the powers that cover specific actions or decisions come to an end when those actions or decisions are taken. The ongoing powers would then be the only powers left in the guardianship.
If intervention orders become graded guardianships we propose that existing intervention orders become graded guardianships automatically. The grade would depend on the powers given in the original intervention order.
Do you agree with our proposal to amalgamate intervention orders into graded guardianships? Please give reasons for your answers.
Organisations applying for guardianship
The AWI Act at present allows the Sheriff to appoint as guardian an individual whom he considers suitable for appointment and has consented to being appointed, and where the guardianship relates only to the personal welfare of the adult, the chief social work officer of the local authority.
We think there is merit in extending the category of those appointed to include organisations. Examples of this would be third sector organisations such as registered charities, community groups, social enterprises, mutuals and co-operatives, as well as solicitors firms and care providers. We are suggesting this because we have been told about cases where an adult has property and financial affairs that need managing but there is no-one available to apply to be a financial guardian, leaving the adult without someone with the legal authority to help with these matters. At present the local authority often steps in and applies for a local solicitor to become the financial guardian but this may not always be appropriate or possible.
In terms of welfare the local authority can apply to appoint the chief social work officer as the welfare guardian. The chief social work officer will in practice delegate his functions to a social worker. However we are conscious of the pressures on local authority services, and organisations who wish to be welfare guardians (with a nominated person operating the guardianship) could provide a valid alternative, increasing the pool of available guardians.
The supervision of organisations that become guardians will be split into welfare and financial matters, as is the case for other guardians. Before being able to apply to be a guardian an organisation would have to complete a fit and proper test to be authorised by the Office of the Public Guardian, similar to that currently applied by the Care Inspectorate. Organisations would have to nominate an employee to act on its behalf. Thereafter OPG will apply the appropriate level of supervision to the organisation, based on a risk assessment.
Welfare supervision will be by the local authority, with the Mental Welfare Commission and Care Inspectorate also having roles in relation to investigation and inspection. We intend that our welfare supervision proposals ( Chapter 9) will bring about more co-ordination and co-operation between these organisations.
Access to Funds ( ATF) (s.24-34)
The Access to Funds scheme is a scheme administered by the Office of the Public Guardian ( OPG). It allows an Individual(s), or an Organisation (excluding care homes) to have access to funds to pay for products and services that will benefit the incapable adult. The person or organisation is called a withdrawer, the role of which is unpaid.
Application is to the OPG and was intended to be straightforward so that the services of a solicitor are not required. However the process is complex and members of the public often require extensive support from OPG staff with its completion.
Prior to the introduction of this scheme it had been expected that up to 20,000 applications to access funds may have been received per annum but the reality is less than 400 applications per annum are received. The cost of administering this highly labour intensive service is disproportionate to the relatively few individuals who benefit from it and the scheme is little understood, despite extensive awareness raising and training by the OPG. We are therefore considering repealing the Access to Funds provisions.
We think that an application for a grade 1 guardianship would be simpler, provide more functionality and more safeguards than the present ATF system. There are some safeguards in the ATF scheme that should be catered for in graded guardianship as follows:
1. A single medical certificate confirming the adult’s incapacity is required.
2. There is commentary on an individual’s suitability to act as withdrawer.
3. The application is intimated on all relevant parties.
4. Duration is limited.
5. The withdrawer has access only to the designated account to use the funds for the reasons specified in the application.
6. The Public Guardian reviews the operation of every case at a set point to ensure the transactions are occurring as authorised.
7. A fund holder can be asked to produce information on accounts administered by a withdrawer.
8. An organisation is assessed on its suitability by the Public Guardian.
We suggest that graded guardianship will cover the above points as follows:
1. A similar medical certificate will be required at grade 1, with views sought in Chapter Six on who may be able to sign the certificate.
2. This is provided for by the questionnaire devised by the Office of the Public Guardian called the OPG guardian declaration.
3. The application will be returned to applicants for intimation.
4. There will be a limit of 3 years at grade 1.
5. One of the reasons behind the unpopularity of ATF was the restricted nature of its operation. Graded guardianship will have wider powers.
6. OPG will provide tailored, risk based supervision to guardianship cases.
7. The existing investigative powers around guardianships will cater for this.
8. We propose that before applying for a graded guardianship an organisation will have to apply to OPG to complete a similar form to the present Care Inspectorate form showing their fitness to act on behalf of the person in relation to their welfare, property or finance. Once passed as fit, the organisation will then receive a reference that they will then quote to whichever body they will be applying ( OPG, MHT, courts). They will only require to do this once and can then quote the same reference for subsequent applications.
Therefore we are recommending that the Access to Funds scheme under Part 3 of the AWI legislation is repealed in favour of graded guardianship.
Management of Residents’ Finances under Part 4 AWI (s.35-46)
Part 4 of the Adults with Incapacity Act allows managers of hospitals and care homes limited scope to manage the financial affairs, moveable assets and personal belongings of incapacitated adults in their establishments. There are 2 supervisory bodies for this. They are the local health board for NHS hospitals and the Care Inspectorate for care homes.
Authority is given to managers to claim, receive, hold and spend any money to which a resident is entitled, up to a value of £10,000 as long as it is for the benefit of the resident and taking into account any sentimental value the resident puts on any item. This does not include Department of Work and Pensions ( DWP) benefits.
For a variety of reasons, uptake has not been what was expected and is very low. On speaking to people possible reasons for this are:
1. The £10,000 limit.
2. An establishment can’t spend a residents’ funds on items or services which are provided by that establishment as part of normal service. This excludes care homes and other accommodation providers from being an adult’s guardian in order to pay care home fees.
3. The process is very slow. Care homes and hospitals often have temporary residents where it would be advantageous to have very quick access to their finances in order to remove risk to their estate from themselves or others.
4. The health boards have employees and act as supervisory bodies, as well creating a possible conflict of interest.
5. Where the adult’s DWP benefits and other money are mixed together in one account, there are difficulties in telling the value of each one and therefore accessing these funds.
6. The complexity of the system outweighs the benefits.
We think that the purpose that management of residents’ finances was designed for could be fulfilled by organisations under graded guardianship. Organisations would then be scrutinised by a by a fit and proper test from the Office of the Public Guardian, similar to that currently applied by the Care Inspectorate, before being allowed to apply to be a guardian. Organisations would have to nominate an employee to act on its behalf.
This would allow hospitals and care homes to manage residents’ funds by being their guardian, with the supervision by OPG that that would bring. This would address the points above as follows:
1. There would be no limit on the level of funds, there would only be a different application process and different supervision depending on the level.
2. This would remove the barrier on spending a residents’ funds on items or services which are provided by the establishment as part of normal service to allow for payment of care home fees. The criteria would be wider and the same as for individual guardians at present, with the need, at all times to act under the AWI principles.
3. We expect the appointment process to be much quicker overall, especially at grade 1. There will still be the option for interim appointments at grades 2 and 3 if the risk is perceived to be great enough.
4. The conflict of interest for health boards would be removed as there would be a different supervisory body.
5. DWP benefits would be able to be managed as part of the powers given as guardian.
6. The graded guardianship application and powers will be tailored to the adult’s circumstance. The powers that are given are likely to be wider than those under the Management of Residents’ Finances scheme.
Therefore we are proposing that Part 4 of the AWI Act is repealed in favour of the graded guardianship system.
Consequential or ancillary AWI applications
There can be applications to the Sheriff at present not covered under the applications described above. For instance, under Section 3 of the AWI Act an applicant can apply for directions from the Sheriff as to the exercise of functions under the Act.
We propose that under a new system these applications are lodged to the Sheriff or legal tribunal member in the first instance. If the Sheriff or legal tribunal member considers a hearing is required, then the Sheriff could convene a hearing or the mental health tribunal could convene a three member tribunal hearing.
Do you agree with the proposal to repeal Access to Funds provisions in favour of graded guardianship?
Please give reasons for your answer.
Do you agree with the proposal to repeal the Management of Residents’ Finances scheme?
If so, do you agree with our approach to amalgamate Management of Residents’ Finances into Graded Guardianship?
Please give reasons for your answer.