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Publication - Guidance

Continuing and welfare attorneys: code of practice

Published: 7 Mar 2018

Guidance for people who grant powers of attorney, or people who are appointed as attorneys under the Adults with Incapacity (Scotland) Act 2000.

88 page PDF

335.7kB

88 page PDF

335.7kB

Contents
Continuing and welfare attorneys: code of practice
Chapter 5 - Specific guidance on exercising welfare powers of attorney

88 page PDF

335.7kB

Chapter 5 - Specific guidance on exercising welfare powers of attorney

Managing the adult's welfare

5.1 Remember that capacity is not 'all or nothing'. Your powers can only operate when the granter loses capacity in the area or areas of decision-making granted in the document. Since 5 October 2007 the power of attorney must include a statement that the granter has considered how incapacity should be determined. The granter may then also have specified how this should happen. You will be acting wrongfully and without authority if you try to intervene when the person could still take a decision on the particular matter in question on his/her own behalf.

5.2 As explained below in relation to the principles (see chapter 3 paragraph 3.12), even if the person has lost the capacity to make a decision, he/she may still have wishes or feelings about the matter, and you must ascertain those wishes or feelings in whatever way is appropriate to the individual, and take account of them in exercising your powers.

Reviewing current arrangements and needs

5.3 The following good practice guidance is written mainly from the point of view of an attorney who has not had any day to day knowledge or experience of the adult's welfare but should also be used as a fail-safe by attorneys who familiar with the person and his/her needs. It is good practice for all attorneys to review the adult's welfare. Depending on your powers, this might involve:

  • Checking whether the person seems well and happy in his/her current circumstances. If not, can the circumstances be changed so as to improve matters for example by modifying the home in some way, and obtaining further support from community care services.
  • Assessing the person's accommodation and facilities for suitability for his/her needs. For example, could the person benefit from special equipment to assist with a physical disability, or a move of bedroom nearer a bathroom; or more privacy? Is the accommodation warm enough?
  • Has the person adequate clothing? Is there any need for clothing to be purchased which would make it easier for the adult to dress independently?
  • How is the person supplied with meals? Can he or she cook meals or heat them up so as to learn or maintain the use of skills? Is there someone who cooks for the adult? Does the adult attend a luncheon club or could he or she do so if suitable arrangements were made? Does the adult receive meals on wheels and if not, could these benefit the adult? Does the adult have special dietary requirements, for example religious, vegetarian, low fat, low salt, gluten free, etc., which are being met?
  • Is the person's home clean and well-maintained? Would he/she wish it to be cleaned and decorated by contractors? It is important, however, not to impose your own standards on the person.
  • Make sure you know who is looking after the person on a day to day basis, and who else is involved, such as a community care officer, medical practitioner, hospital consultant, community nurse.
  • How does the person spend his or her time during the day? Is he or she attending any kind of activities or day centre? Does he or she have friends or relatives who call? Does he or she have hobbies or interests? If the adult is bored, why is this the case and can anything be done about it? For example, it may be that the primary carer has no access to the adult's funds for outings.
  • Is the person in employment or training? If not, is there any possibility of improving the adult's quality of life by arranging for training or employment within the adult's capacity?
  • What were the person's normal holiday preferences? Would it benefit the adult if his or her carer had a holiday or if the adult had a holiday away from the carer? Should periodic respite care be arranged?
  • Does the person have a faith/religious affiliation that he or she would wish to maintain? Is there a member of the person's faith community who visits or might be willing to visit the person? Are there arrangements to take the person to his or her place of worship?
  • Does the person have any ongoing medical problems and how are these being tackled? What is the diagnosis, likely development of any illness, and longer term prognosis?
  • Is the person's personal appearance acceptable? Again it is important not to impose your standards on the adult, paying full respect to the adult's known preferences, wishes and feelings, but the adult's dignity is important and specific issues such as whether hair and nails are clean and well cut should be considered.
  • Does the person enjoy personal dignity and privacy? Could his or her welfare be improved by increasing the his or her independence?
  • Is the person maintaining contact with others who are important to him or her? Could his/her quality of life be improved by facilitating such contact, for example by encouraging visitors or even paying expenses for visits to and by others.

Find out if anyone has powers over the person's property and financial affairs

5.4 Unless you are have both welfare and financial powers of attorney you will need to find out (if you have not already done so) if there is a continuing attorney, guardian, or withdrawer (under the Access to Funds scheme) who controls the granter's finances. This is because your decisions on welfare matters may require expenditure and you may wish to make arrangement for the reimbursement of expenses you may incur on behalf of the adult. This information can be obtained from the Public Guardian.

5.5 You may have been appointed jointly with someone else appointed as continuing attorney and if so you will need his or her co-operation.

5.6 If there is no-one with power over the adult's finances, you may wish to consider applying for one of the other interventions in the Act to obtain such power yourself, for example as a withdrawer from the adult's account under Part 3.

5.7 You should also check as far as possible whether there is any other person with powers over the adult's financial affairs, in particular:

  • any trustees of a trust set up for the benefit of the adult, or in which the adult has an interest (the person's solicitor is likely to know this);
  • any nominees for particular assets;
  • any discretionary pension fund arrangements;
  • any holder of a joint account with the adult;
  • any Department for Work and Pensions appointee who has authority to receive benefits on behalf of the adult;
  • anyone who has been managing the adult's affairs under informal arrangements.

Community care services

5.8 If the granter is in receipt of community care services, you should find out the name of the social work officer within the local authority who arranged these. You should contact this officer explaining that you have become welfare attorney to the adult, offer to produce your registered power of attorney, and ask to discuss the person's welfare needs.

5.9 If the person has not been assessed for community care services, or has a disability and has not had his/her needs assessed you should make a request for an assessment to the local authority social services department.

5.10 If the person is attending a day centre, you should also speak to the staff at the day centre to find out their views of his/her welfare needs.

5.11 If the person is in a care home, you should visit him/her and check for yourself that he/she is being properly cared for, asking the questions that are suggested above.

Assessing the need for change

5.12 It would be good practice to make your own assessment of whether the person's care needs are being satisfactorily met. See above for the kinds of questions you might want to ask yourself, having discussed these matters with the person and others involved in caring for him/her.

5.13 In reaching your assessment, you must have regard to and be clear about your own powers in the power of attorney document. You may find, for example, that you identify a need, but that you would not be able to make a decision or take the necessary action because you do not have the powers. In some cases the person may be able to take the action or make the decision personally, but in others you may need to seek additional powers or find out if the local authority has the powers needed, e.g. to provide services.

5.14 You should ascertain when it will become necessary to make decisions about or attend to various matters, such as:

  • if the person's tenancy is due to come to an end, renewal or obtaining alternative accommodation;
  • if the person's spouse is seeking a divorce in which case you may need to make arrangements to ensure that the adult has adequate legal advice on his or her position regarding property and financial affairs, residence of and contact with children and so on;
  • if the person has decided to marry (but remember that you cannot consent to marriage, only the adult can do so. What you can do is take into account the consequences for the adult's living arrangements and so on);
  • if the person is due to come into funds, such as on the maturity of a life assurance policy, which would enable additional goods or services to be purchased;
  • any possible move to a care home;
  • any operation or other treatment required by the adult in respect of a medical condition;
  • visits to the dentist, chiropodist, etc.;
  • the person is seeking or changing work, or training, or wishing to exercise or develop an artistic talent or to attend occupational therapy, or a different day centre placement;
  • a holiday or respite care for the person;
  • attendance at particular family or social occasions such as weddings, ceremonies related to the birth of a child, reunions, etc.;
  • care of the person in the event that his/her carer becomes ill or absent for some reason.

Obtaining specialist advice

5.15 You should consider whether decisions need to be made now or in the near future on which you require specialist advice.

  • Example: if the person has a developing medical condition you will need to ensure that he/she receives adequate medical care, provided this is within the scope of your powers. You will need access to any consultant or other medical practitioner caring for the person, so that you can discuss his/her condition and treatment options. But remember that you do not have the right to consent to certain treatments. For information about what to do if you disagree with the doctor, see the Code of Practice for persons authorised to carry out medical treatment or research under Part 5 of the Act at: http://www.scotland.gov.uk/Topics/Justice/Civil/awi.
  • Example: if you need to make a decision or take action which may involve the use of restraint, you should consult the good practice guidance produced by the Mental Welfare Commission [5] and seek the advice of the local authority social services department.

5.16 It would be against the principles of the Act to do anything which is strongly resisted by the person (unless the particular matter is included specifically within the powers granted). If you think this is an issue you are advised to consult the local authority social work department.

5.17 As indicated above, it may also be appropriate to seek an early community care assessment or a disability assessment.

5.18 You may be able to receive help and support from a voluntary organisation which assists people with disabilities in general, or people with particular conditions. You may also find a source of help and support for yourself in these organisations. See Annex 2.

5.19 If you require a solicitor and do not have ready access to one, you should contact the Law Society of Scotland. The Scottish Legal Aid Board has a list of solicitors in your area who are registered to carry out legal aid work.

Updating your file

5.20 When you have carried out the initial review referred to above of the person's welfare needs and how these are being met, it would be good practice to update your file to record the following information:

  • the name, address and other contact details of all those involved in the person's day to day care;
  • the name and address of all those with powers over the person's property and financial affairs;
  • the name and address of any officer of the social work department providing community care services for the adult; and any home help or other service provider involved in the person's community care;
  • the name and address of any relatives or friends with an interest in the person's welfare;
  • the name and address of any relatives or friends with whom the person maintains contact;
  • any forthcoming or regular appointments which should be kept by the adult in relation to personal welfare matters such as visits to the hospital, dentist, chiropodist, etc.;
  • the names, addresses and other contact details of any professional advisers with whom you will be dealing with regard to the adult's welfare, such as a psychologist or solicitor;
  • the names and addresses of any voluntary body contacts which you have established;
  • a note of any key decisions required in the foreseeable future.

If you think that action needs to be taken

5.21 The outcome of the review described above may be that certain actions need to be taken to improve the person's care and quality of life. In determining whether an action or decision needs to be taken on behalf of the person, you must apply the principles.

Check your powers

5.22 If you decide that a major decision needs to be taken you should check whether your powers would cover that particular action.

5.23 You should make a note of the findings of your review and your recommendations and add this to your file.

Setting out your proposals for change

5.24 When you are satisfied that your review is complete it would be good practice to set out your proposals in a written document which you should send to the granter and others with an interest in his/her welfare. You should keep a copy of the document in your file.

5.25 Having sent out your recommendations, it would be good practice to meet again with the person to explain your plans and get their views. The granter may be capable of instructing you on the matter in question, although not capable of carrying out the action for him/herself. The granter may also be able to indicate a view by non-verbal language or signals.

  • Example: the person may ask you not to seek help from a particular person or agency because of bad experiences in the past. He/she may wish a move to a care home to be put off for longer, even though he/she is not receiving the best possible care at home. The person may prefer his/her own surroundings with their imperfections to an unknown new place of residence. These views should be respected (but see also paragraph 5.41 about seeking advice in the event of disagreement).

5.26 You should encourage the person to be as independent as possible in terms of managing his/her personal care; to maintain existing skills and to develop new skills.

  • Examples: A stroke victim who has lost substantial mental and physical capacity could, for example, with suitable support, learn to care for him or herself to some extent. A person with dementia should be encouraged to take his/her own decisions about clothing, diet, appearance and leisure activities, rather than having these things dictated to him/her by someone else, however convenient that may be. For someone with a brain injury, encouragement to use skills and develop new skills may be a major part of the rehabilitation process.

5.27 You should consider to what extent the person could act for him/herself.

  • Examples: The person could be given the opportunity to choose his/her own clothes. Certain clothes stores have a policy of assisting people with disabilities to use changing rooms and allow spouses to help each other. Or the person could indicate his or her choice from pictures in a clothes catalogue.
  • Before visiting a restaurant, you could find out about the person's preferences, read or show the menu to the adult and encourage him or her to choose his or her own dishes rather than relying on someone else's views of what he or she should have. Voluntary organisations may able to advise on the existence of accessible information such as picture illustration books about everyday situations.
  • The person, if mobile and able to do so without undue risk, could be encouraged to take walks, travel by public transport, attend recreational or social activities and make small shopping purchases independently. The person could be provided with specialised equipment such as a motorised wheelchair, a stair-lift, taps operated by levers or low level sinks in order to be able to do more for him or herself. The use of personal alarms and other modern technology could enable the adult to enjoy more independence without running undue risks. An assessment by an occupational therapist will help to identify what will be appropriate to the needs and home circumstances of the individual. Voluntary organisations which provide a befriending service could also be contacted to ascertain whether they provide services that could enable the adult to lead a fuller life.

5.28 If the person has communication difficulties see the guidance in Annex 1.

5.29 You have a duty to seek the views of any continuing attorney, and of any person appearing to you to have an interest in the welfare of the granter in so far as it is reasonable and practicable to do so. Such a person is likely to have made their interest known to you and to be willing to express views.

5.30 You should also contact and ideally meet with the nearest relative, primary carer, named person and significant others at which you can explain your findings and proposals and convey the views of the person. If a meeting is not possible you should send a letter explaining your recommendations to each of them, and invite written comments.

5.31 If a support worker or community nurse is involved in providing services to the adult, you may wish to include him or her in the meeting, or arrange to see these workers separately.

5.32 If you have taken professional advice, you may also wish to involve your professional adviser or advisers in the meeting; or copy your recommendations to the professional adviser or advisers. Similarly, if you have regular support from a voluntary body, you may wish to involve them.

Recording action taken

5.33 Having followed this process it should be possible to reach conclusions on the actions needed in relation to the adult's personal welfare, which are based on proper investigation, and which comply with the principles. You should record these conclusions on your file. For example, you should file:

  • photocopies or electronic copies of any correspondence relating to the granter's personal welfare;
  • a note of any important telephone calls about the granter's welfare; for example if someone phones to inform you of any incident relating to the person, such as fall a the day centre or involvement in some other accident, argument or fight; or of the adult's being taken ill;
  • copies of invoices and receipts for purchases of £100 or more incurred on behalf of the person. The granter may be able to reimburse you personally, or you may yourself have powers over the granter's financial affairs. Otherwise you will need to agree arrangements with anyone having powers over the adult's financial affairs how you will be reimbursed, and present the originals of any invoices and receipts to that person;
  • any correspondence with anyone having powers over the adult's property or financial affairs about how the adult's welfare needs are to be met. For example, you as welfare attorney may not wish to seek powers to access funds with the adult's bank account under Part 3 of the Act; but you may need to have correspondence with someone who does wish to apply. The application requires an estimate of all the person's planned expenditure, care costs, transport costs, etc.

Ongoing functions as a welfare attorney

5.34 You should have regular contact with the person and others involved with his/her care. The frequency of review meetings will depend on the extent of your contact, but it would be good practice to hold a review at least every 6 months.

Monitor the adult's personal welfare

5.35 It would be good practice, within the scope of your powers, to monitor the adult's personal welfare.

  • Example: if it is within the scope of your powers to arrange for the adult to receive medical treatment, you should ensure, if no-one else is doing so, that you consult a medical practitioner promptly in the event of the adult becoming unwell.

5.36 Although you may not have any financial powers yourself, you should also check that the adult's finances remain under control, by regular liaison with anyone having such powers. You may need to seek financial powers, or encourage someone else to do so, if a lack of proper arrangements is preventing you from operating as welfare attorney.

Deciding the need for further action

5.37 Either as a result of your own monitoring, or because you are approached by someone else with an interest, you may decide further action/s or decision/s need to be taken in relation to the adult's welfare.

5.38 The process for carrying out further action/s or decision/s is similar to that you will have carried out initially. Briefly, for each proposed action, you must follow the principles, check that your powers as welfare attorney will permit you to take the action or decision in question, and record what you have done.

Seeking the advice of the local authority and MWC

5.39 The Public Guardian notifies the local authority of all registered powers of attorney with welfare powers therefore, your local authority will have been made aware of your appointment. Although the local authority has no function of supervising a welfare attorney unless ordered by the sheriff, it has a responsibility to give you advice and guidance on the exercise of your welfare powers. It is therefore a good idea to contact the local authority social work department if in doubt about the course of action you propose to take on behalf of the adult. You should keep a note of the contact details of any social worker with whom you have had contact and record any conversation and action agreed.

5.40 The Public Guardian also notifies the MWC of all registered power of attorneys with welfare powers. The MWC can provide valuable advice to anyone exercising welfare powers in relation to an adult whose incapacity is due to mental disorder.

What to do when there are conflicting views on a proposed intervention

5.41 When you hold reviews with the adult, the nearest relative, primary carer, named person and relevant others, you should let them know in advance of any issues you wish to discuss, Do not take action that will come as a surprise to the others but make sure that you have taken proper account of their views. Keep an open mind until you have heard, understood and considered all relevant views.

5.42 Despite your best efforts, however, there may occasionally be disagreements which cannot be readily resolved.

  • Example: there may be a dispute as to whether the person should be moved into a care home, with some of those with an interest believing that the person's capital in the house should be preserved and that relatives can or should continue to care for the adult.

5.43 In seeking to persuade others of your point of view, you should direct those who disagree with you to your statutory responsibilities as attorney, to the powers that the granter chose to confer, and to the fact that the granter selected you to exercise those powers for him or her.

It will assist you if you can show that you have:

  • applied the principles systematically;
  • balanced one principle against another in the correct manner. For example you need to consider benefit to the adult as well as minimum intervention. If someone who disagrees with you takes minimum intervention as a starting point, they may be attaching insufficient weight to the need to benefit the adult;
  • taken account of the past and present wishes and feelings of the adult so far as these can be ascertained;
  • where reasonable and practicable, taken account of the views of the nearest relative or anyone nominated by the sheriff to act in place of the nearest relative and primary carer, named person and anyone else appearing to you to have an interest in the welfare of the adult or in the proposed intervention. But you do not need to accord undue weight to any one view. Nor do you need to follow the majority view where you have carried out your own assessment of the need for an intervention, and it does not agree with the majority. On the other hand, you should never be afraid to reconsider where new information or a new point of view is drawn to your attention.

5.44 If you are unable to persuade others to accept your judgement, you may wish to seek additional advice, for example from the MWC, from the local authority, from a solicitor, a medical practitioner or a voluntary body. If you can produce written advice that supports your decision, this may help in defending your actions. In particular, you should seek advice if the person disagrees with a particular course of action which you are convinced is in his/her best interests, for example a move to care home.

5.45 Ultimately you may find that you simply have to insist. If you are confident in your judgement, do not back down. You would be letting the person down if you gave in for the sake of peace; or stood down, leaving the person with no-one (or someone he/she did not chose) to make welfare decisions on his/her behalf.

5.46 If you still encounter difficulty you can advise those who disagree with you of their right to complain to the local authority. You can also direct those who disagree with you to section 3(3) of the Act which allows them to apply to the sheriff for directions. Alternatively you can exercise your own right to apply for directions under section 3(3).

5.47 Part 5 of the 2000 Act provides the rules on the general authority under which a medical practitioner may give treatment to an adult. It makes provision for the resolution of disputes between medical practitioners and welfare attorneys (and between them and others having an interest) and for appeals to the courts in respect of decisions taken under this Part.

5.48 If you do not agree with the medical practitioner primarily responsible for the adult's medical treatment, and the doctor does not accept your view, the doctor must request the MWC to provide a 'nominated medical practitioner', from a list held for this purpose, to give a further opinion as to the medical treatment proposed. The nominated medical practitioner must have regard to all the circumstances of the case and must consult you. The nominated medical practitioner must also consult another person nominated by you, if it is reasonable and practicable to do so. If after taking these steps the nominated medical practitioner certifies that in his or her opinion the proposed medical treatment should be given, then the medical practitioner primarily responsible may give the treatment, unless you or some other person with an interest in the adult's welfare appeals to the Court of Session against this. The medical practitioner primarily responsible for the treatment also has a right of appeal to the Court of Session against the decision of the nominated medical practitioner.

Conflict of interest affecting you as attorney

5.49 As welfare attorney, you may be someone close to the granter in another capacity such as relative, or carer. You may find that this occasionally creates a conflict of interest between your own personal interests and your fiduciary duty. Do not let this worry you unduly. The very person who is best to be attorney is likely to be someone close to the granter and this situation will not be uncommon.

  • Example: Relatives might argue that it would benefit the person to spend Christmas at home, instead of remaining at the care home, but you as welfare attorney might feel that this is too risky as he/she might require nursing care that family members could not provide. Alternatively, relatives might press you not to take the person on a particular outing or trip, such as to the wedding of a family member, but you might feel that the person would enjoy it and that the risk is acceptable.

5.50 In these as in all other circumstances you should observe the principles. Ask the person's opinion and consult anyone else with an interest in the person's welfare. If the step which is being contemplated has implications for property or financial affairs, then the continuing attorney or anyone else with powers to intervene in the person's property or financial affairs should be consulted. If the adult cannot express an opinion, consider what the adult would have thought of the proposal had he or she remained capable. For example, if the adult expressed views in the past about participating in gatherings, these should be taken into account.

5.51 If you are in doubt about the proper course, or find that you are being challenged, there are various options open to you. You could:

  • ask an independent solicitor or someone from an independent advocacy project to represent the interests of the adult in discussing the matter with you;
  • consult the local authority or MWC;
  • seek directions from the sheriff under section 3(3) of the Act.

What to do where your powers are insufficient

5.52 You may find that your powers are insufficient to carry out a particular action or decision which is necessary. For example, the time may come to sell the person's house, but there may be no-one with powers to deal in the adult's heritable property.

5.53 In these circumstances you may need to consider using one of the other interventions under the Act or asking someone else to do so.

The options include:

  • Applying to the Public Guardian under Part 3 to withdraw funds from an account held by the adult to meet his or her day to day expenses. The Public Guardian can provide an application form and guidance notes on this procedure. It is also covered by a code of practice.
  • Applying to the sheriff for an intervention order under Part 6 of the Act to empower you to take the necessary steps or give the necessary consent. You would then be acting on that matter under the intervention order rather than as an attorney. There is a separate code of practice on intervention orders and guardianship.

5.54 If you find that your welfare power of attorney is inadequate in a number of ways, for example because of drafting flaws in the original document, or a step-change in the person's condition, or a change in personal circumstances such as the death of the primary carer, you may need to apply to the sheriff for welfare guardianship. However it may be possible to achieve what is needed for the adult, through the social work department. The Social Work (Scotland) Act 1968 enables local authorities to use their powers to provide necessary services to adults who are unable to consent to them (so long as the adult does not resist) and no one else is applying for a guardianship order with the necessary powers.

What if there is a complaint against you

5.55 If someone has a complaint against you, and either does not put it to you or is not satisfied with your response, he or she has recourse to the local authority in the first instance. The local authority has a duty to receive and investigate complaints regarding the exercise of welfare powers by an attorney or guardian.

5.56 The MWC also has an interest where the adult's incapacity is due to mental disorder, and the complainer can contact the MWC direct, although the MWC will only investigate a complaint (where dissatisfied with a local authority response or the local authority has failed to investigate).

5.57 The local authority will contact you about any complaint received and ask you for your version of the facts. If you have applied the principles correctly, have taken advice, have kept relevant documents such as correspondence, and have recorded your decisions and actions on a file as recommended above, you should have nothing to fear from such an investigation.

5.58 You will need to produce similar information should the MWC have cause to investigate or reinvestigate the complaint.

Possible court proceedings in the event of a complaint

5.59 A person who is dissatisfied with your actions as welfare attorney also has recourse to the sheriff. An application to the sheriff may be made by any person claiming an interest in the property, financial affairs or personal welfare of the granter. You can also apply to the sheriff for directions under section 3(3).

5.60 The sheriff may dismiss such an application from a person challenging your actions, or may give the applicant or yourself directions. Everything will depend on the case which is put to the sheriff and his or her view of what is required by the principles in the situation which has been set out.

5.61 Where the sheriff upholds the complaint, the sheriff may make an order ordaining you to be subject to the supervision of the local authority for a period specified by the sheriff.

5.62 This will mean that you will have to account for your decisions and actions to the local authority, whereas previously you did not have to account formally to anyone.

5.63 The sheriff can also order you to make a report to him or her to account for how you have been exercising your powers.

5.64 The sheriff's decision on an order made for your supervision, or for you to submit a report, is final.

5.65 The Public Guardian has a duty to add the details of the terms of any order made by the sheriff to the register, and to notify the granter, the local authority and the MWC as well as yourself.

5.66 If you find yourself in this situation, this does not mean an end to your functions as welfare attorney. If you have kept records as recommended above you should have little difficulty in producing the necessary report to the sheriff. You may wish to seek legal advice. The cost of such legal advice will normally be payable out of the granter's estate.

5.67 If you are ordered to be subject to local authority supervision, you should regard this as a help rather than a threat. You can regard the officer of the local authority who is responsible for your supervision as providing you with necessary advice and support. You should have a meeting with this officer, show him or her your file, and ask what records he or she would like you to keep in future, and what form the supervision will take.

5.68 In extreme cases the sheriff can revoke (cancel) your powers or some of them.

Supervision by the local authority

5.69 The Act requires local authorities to supervise welfare attorneys where ordered to do so by the sheriff. An application to the sheriff to order supervision of a welfare attorney may be made by any person claiming an interest in the personal welfare of the adult. It is the responsibility of the Public Guardian to notify the local authority of the order. If you also have continuing powers of attorney you may be subject to supervision by the Public Guardian.

Purposes of supervision

5.70 Supervision is intended to ensure that proxies are carrying out their functions properly. It should focus specifically on potential problems that might require action by the local authority. Supervision should relate to the particular circumstances of your case within the context of general local authority guidance and procedures.

5.71 The extent of local authority supervision of a welfare attorney may be specified in the order made in each case. But amongst the purposes of supervision of welfare attorneys by authorities are:

  • To ensure generally that you are exercising powers in such a way that the person's interests are being safeguarded and promoted. This is important because the person is unlikely to be able to complain effectively if you are not acting appropriately.
  • To assess the impact of any significant changes in circumstances on the person's welfare and the way you carry out your duties as attorney.
  • To identify any potential need for you to be removed or to have your powers modified.
  • To identify if an application should be made for other orders under the Act about the exercise of your powers as welfare attorney. For example the sheriff may order a welfare attorney to report to him/her self. The sheriff has general powers to make consequential or ancillary orders or directions, impose conditions on orders granted, and call for further information.
  • To identify whether other measures under the 2000 Act may be necessary, e.g. applications for intervention or guardianship orders.

Supervision regulations

5.72 Regulations (The Adults with Incapacity (Supervision by local authorities) (Scotland) Regulations 2001) specify the form that supervision of attorneys with welfare powers should take.

Visiting

5.73 The local authority will arrange for the person and yourself to be visited at a frequency specified by the sheriff. If the sheriff does not specify a period then at least once a month, for the duration of a period set for supervision.

5.74 During a visit, the local authority will want to inspect the records that all proxies are required to keep under the Act.

5.75 The local authority may arrange or contract with another body to carry out supervisory visits. For example, the local authority might ask another authority to visit on its behalf, if you do not live in the same local government area as the adult.

5.76 If appropriate, visits to the adult and to you may be combined, although the local authority is likely to consider carrying out separate visits, for example where there appears to be conflict between you and the adult.

5.77 Visits will normally be made by appointment, but in certain circumstances the local authority may decide to make an unannounced visit, for example to gain a view of the person's living circumstances.

Provision of information

5.78 The Regulations require a welfare attorney who is being supervised by the local authority to provide any report or specific piece of information about the personal welfare of the adult or the exercise by the attorney of his or her personal welfare functions, as the authority may from time to time reasonably require.

5.79 The local authority is likely to require you to report significant accidents or incidents affecting the adult. These might include, for example, accidents resulting in significant injury, incidents that could have resulted in serious injury, or episodes of challenging behaviour by the adult resulting in harm to him or herself or to others. Accidents to the adult's property or theft or loss should also be reported, as this may have an impact on the adult's welfare either material or psychological. You can expect to receive guidance from the local authority on what reporting is required. If you live at some distance from the adult, the authority may need to rely on reporting by others, such as agencies providing care to the adult.


Contact

Email: AdultsIncapacity