GUARDIANSHIP AND INTERVENTION ORDERS. (Including supervision of proxies) STAFF GUIDANCE

Transcription

1 GUARDIANSHIP AND INTERVENTION ORDERS (Including supervision of proxies) STAFF GUIDANCE 1

2 Contents 1 Introduction Guardianship or Intervention Order? Calling a case conference Purpose of the case conference Application by the local authority Application by an individual other than the Local Authority The report by an MHO or Chief Social Work Officer Report on the suitability of a welfare guardian or welfare intervener Court proceedings Action after order is the granted Supervision of a person authorised under an Intervention Order Supervision of Private Welfare Guardians Record Keeping Reviewing guardianship Renewal of guardianship order Recall of welfare guardianship by the local authority guardian Reference Material Appendix 1: SUPERVISION OF NON-LOCAL AUTHORITY PROXIES (short) These notes of guidance are concerned with the application for Intervention Orders and Guardianship orders. Reference should also be made to the separate notes on the supervision of proxies. Staff must also familiarise themselves with the relevant sections of the Act, the Code of Practice for Local Authorities exercising functions under the Act and the Code of Practice for persons authorised under intervention orders and guardians. 2

3 1 Introduction 1.1 Part 6 of the Act relates to guardianship and intervention orders (sections 53 and 57 in particular). 1.2 As with all other interventions under the Act the general principles set out in section 1 (4) of the Act must be applied when considering any action under this section. 1.3 An intervention order may be applied for to deal with either a financial or a welfare issue. 1.4 A guardianship order may relate to either welfare or financial issues or both and relates to a range of matters. The local authority cannot be appointed to have financial powers but can request others to do so; for example, a solicitor or an accountant. 1.5 A guardian may be appointed to deal with financial or welfare matters or both. 1.6 Joint guardians and substitute guardians are possible. 1.7 The chief social work officer (director of social work) may be appointed as welfare guardian. 1.8 The chief social work officer cannot be appointed as a financial guardian. However, where a financial guardian is necessary and no one else is making the application the local authority must make the application, nominating a suitable financial guardian. 1.9 A local authority officer may be appointed as intervener for welfare matters, and, in exceptional circumstances, for financial matters. 3

4 2 Guardianship and intervention orders 2.1 Consideration should be given to any other procedure, which would achieve the desired effect for and on behalf of the adult, in line with the principles of the Act, before considering an application under the Act. 2.2 An intervention order is appropriate to deal with one off situations such as the signing of a document or agreeing to a one off decision affecting an individual's welfare, or a range of actions contained within an overall action, e.g. selling a house and investing the proceeds in the adult s case. 2.3 A guardianship order is more appropriate where there is a range of actions and when continuing decisions over a longer period of time need to be made on behalf of an individual. 2.4 In accordance with the general principles, an intervention order may be a less restrictive option compared to a guardianship order. 2.5 If a guardianship order is applied for, and the sheriff considers that an intervention order would suffice, then the application will be treated as though it was for an intervention order. 2.6 The decision to apply for a guardianship order or intervention order will usually be reached through normal care management procedures, in consultation with the team manager, mental health team. It is important to remember, however, that an application may be made direct to the court by anyone with an interest in the personal welfare or finances of the adult. The first notice that the local authority may have of such an application is a requirement to provide reports to the court within twenty-one days. 4

5 3 Calling a case conference 3.1 If any professional with an interest in the welfare or finances/property of an adult or his/her line manager feels that an application for a guardianship order or an intervention order should be considered, the team manager, mental health team, should be consulted and will decide whether or not to call a case conference. 3.2 The team leader, mental health team, must be involved throughout the process and would normally chair the case conference. A decision not to call a case conference must be recorded in writing with reasons. Where there is no other way of resolving a dispute, the professional who has raised concerns may have the right to apply to the sheriff. 3.3 All relevant professionals, (including an MHO where the reason for incapacity is mental disorder) the adult, his or her relatives, carers and others having an interest in the adult's property finance or welfare should be invited to attend the case conference. Consideration should only be given not to invite the adult when this might be detrimental to their health. 3.4 The care manager will be responsible for inviting the parties outlined above. 3.5 The team leader, mental health team, will be responsible for ensuring that there is a trained minute taker available to minute the case conference. 3.6 A protected period before the adult and/or family join the conference may be considered. 3.7 The adult should be provided with all appropriate supports to enable them to attend the case conference. These supports should include, where available, an interpreter, an advocate or other person able to ensure that the adult s point of view is communicated to the case conference. It is the responsibility of the care manager to make such arrangements as are necessary to facilitate the adult s attendance. 5

6 3.8 If for any reason the adult is unable to attend the case conference personally, wherever possible, someone acting in an independent capacity, such as in independent advocacy worker, should be present to put forward the adult s viewpoint, as far as it can be ascertained. 3.9 If any relative, carer or other person who has an interest in the welfare of the adult is unable to be present, they may wish to contribute to the case conference by means of a letter or a written report. 4 Purpose of the case conference 4.1 The case conference should clearly identify any proposed action(s) or power(s) and confirm that the adult is incapable in respect of the same. 4.2 The basic principles of the Act should be examined in respect of the adult and the proposed action(s) or power(s) to determine that they apply in the current situation. 4.3 The case conference should confirm a course of action, which should be incorporated into the adult s care plan. 4.4 The case conference should identify who will be responsible for making any application to the court, bearing in mind that the local authority is not the first choice however does have a responsibility to make application to the court if this is viewed as the appropriate course of action. 4.5 The case conference will establish a plan of action including a time scale in which this should be done, mindful of statutory time scales relating to medical and social work reports 4.6 A clerical assistant will be present at the case conference to record the decisions made. Decisions made must be communicated in writing to all present or invited, including the adult themselves unless considered detrimental to their health or welfare. 6

7 4.7 In cases where the reason for incapacity is mental disorder and where an MHO has not been appointed before the case conference this should be done at this stage. 4.8 If the reason for incapacity is due only to the adult's inability to communicate, the chief social work officer s delegate (the team leader, mental health team) will liaise with the locality manager, who will be asked to nominate someone to prepare a report -in prescribed form- on behalf of the chief social work officer. NB this member of staff need not be an MHO. 4.9 The case conference should also decide who will be the named delegated guardian. This person does not have to be an MHO, and in many cases (where the local authority is the guardian) a care manager will be the most appropriate person. 5 Application by the local authority 5.1 Sections 53(3) and 57(2) of the Act set out the circumstances where the local authority has a duty to apply for an intervention order or guardianship order. The code of practice for persons authorised under intervention orders and guardians and the code of practice for local authorities both give further advice and guidance on this matter. Note that a local authority officer can never be financial guardian and should only be considered under an intervention order relating to finance/property in exceptional circumstances. 5.2 The case conference would be the time and place to determine if the local authority should make the application. 5.3 The application process for guardianship orders and intervention orders is the same. The application will be made by summary procedure. As each application is tailor made to the needs of the client, the powers sought will be decided at the case conference. 5.4 The application needs to be accompanied by two medical reports (one an approved medical practitioner [section 22 of the 2003 Act]) and a mental health officer report 7

8 (where the adult has mental disorder) on the appropriateness of the order are required, carried out not more than 30 days before the lodging of the application. This task may include the discloser process. 5.4 In cases of urgency, the application may include a request for an interim order to be considered by the sheriff. 5.5 The team leader, mental health team, will guide each staff member through the procedure of application in respect of welfare issues, including: medical reports, qualification/approval of medical staff required, time scales etc. However, it is the duty of any officer of this authority making application under the Act to familiarise themselves with the relevant sections of the Act and codes of practice. 5.6 Careful consideration must be given to the powers with which to be sought. The team leader, mental health team, will offer guidance on the powers and will liaise with the nominated council solicitor in clearly expressing the power(s) within the required legal framework and the writing of the application. 5.7 Where the application only deals with financial or property issues the report should be provided by someone who has sufficient knowledge to make such a report, e.g. an accountant, bank manager, or solicitor. 5.8 The local authority legal staff will lodge the application in court and make intimation as required by the sheriff and the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) Amendment (No 3) (Adults with Incapacity) Application by an individual other than the local authority 6.1 An application for guardianship or an intervention order may be made by any person (including the adult) claiming an interest in the property, financial affairs or welfare of an adult. This may include a professional such as a community psychiatric nurse or occupational therapist or a relative or carer. 8

9 6.2 It is possible, that the local authority will have no prior knowledge of the adult or their circumstances, and may not have been involved in any discussions leading up to the application process being instigated. 6.3 In cases where there is no prior knowledge, the applicant must inform the chief social work officer after which the officer doing the report will have only 21 days to complete the report on welfare issues. The report writer will be a mental health officer unless the incapacity is by reason of an inability to communicate in which case it will be delegated by the chief social work officer via the team leader, mental health team, to liaise with the locality manager to nominate an officer to compile a report. 6.4 A request for a report of this type must be regarded as high priority. The report writer will, if necessary, be supported through the process by the team leader, mental health team. 6.5 Where the adult has communication difficulties, the officer acting on behalf of the chief social work officer should be allocated as soon as possible to enable sufficient time to prepare the report. 6.6 Where someone makes the application other than the local authority, it is likely that the individual will need guidance to access appropriate supports to guide them through the process. 6.7 Support required by the proposed applicant may come from a number of sources including a private solicitor, advocacy service, voluntary organisation or Social Work. 6.8 The cost of engaging a solicitor to support the making of the application to the court may be recovered from the adult s estate or through the Legal Aid Scheme based on an assessment of the adult s means. 9

10 7 The report by an MHO or chief social work officer 7.1 The report, in prescribed form, is to assess the appropriateness of the order, where the views of the adult and others with an interest in the adult must be taken into account. This will inevitably mean that more than one interview will be required to ensure that sufficient information is gathered to produce the report. 7.2 Where the applicant is a private individual the MHO would report on the suitability of this proposed guardian (see 8 below). 7.2 The MHO / reporting officer must at all times be aware of the general principles contained in the Act; indeed the report formally reflects these. 7.3 In interviewing the adult, the MHO / reporting officer must ensure that everything possible is done to enable the best possible means of communication with the adult, including the use of mechanical aids, interpretation services etc. 7.4 If necessary, the MHO / reporting officer should be prepared to abandon the interview and return at another time which may be more convenient. 7.5 If the MHO / reporting officer recommends that an intervention order or guardianship order be granted which goes against the known past or present wishes of the adult he / she must be prepared to substantiate the reasons for this. 7.6 Similarly the MHO / reporting officer must be prepared to substantiate any difference of opinion between him/herself and any relative, carer or other person having an interest in the property, financial or welfare affairs of the adult. 7.7 Special care must be taken in situations where the adult is not able to express his or her past wishes. The views of more than one relative or carer should be obtained whenever possible to ensure that a balanced picture of the adult s past wishes can be ascertained. 10

11 7.8 Where the adult concerned has indicated that they do not wish legal representation, or it appears that they do not understand the process, the MHO / reporting officer should indicate this in the report. The MHO / reporting officer may also wish to recommend to the court to consider the appointment of a safeguarder. 8. Report on the suitability of a welfare guardian or welfare intervener 8.1 This forms part of the report to accompany an application for guardianship or intervention order. 8.2 The report contains the author s opinion on the suitability of the person named in the application. It must, as a matter of good practice, be based on at least one interview, with the proposed person or persons named in the application, except where the proposed guardian is the chief social work officer. 8.3 Where the proposed intervener is a named officer of Scottish Borders Council, the report should still comment on the suitability of that person. Therefore, the same officer cannot both write the report and be the named Intervener. 8.4 Where there are serious concerns regarding the suitability of a guardian or intervener, the reporting officer should indicate this in the report, and the sheriff is entitled to ask questions about previous criminal convictions. The reporting officer is not entitled to ask about previous convictions. The officer may wish to obtain a disclosure clearance. 8.5 Where a relative is applying to be a joint welfare and financial guardian, the MHO / reporting officer is required to comment on their suitability to undertake their financial powers as well as the welfare ones. 8.6 The MHO / reporting officer should confirm:- the person named is aware of the adult s circumstances and condition; the person is aware of the responsibilities of becoming a guardian to the adult or acting under an intervention order on behalf of the adult. This would include an understanding of the general principles of the Act; 11

12 the person is accessible to the adult and or his / her carers; the person is able to carry out the duties of guardian or the functions required under the intervention order; there is no conflict of interest between the adult and the proposed guardian or intervener; and there is no likely conflict of interest between the adult and the proposed guardian; there is no undue concentration of power between the adult and the proposed guardian; and there are no adverse effects of the guardian s appointment. 8.6 The MHO / reporting officer must also consider the powers being sought under the guardianship or intervention order. Would any other powers prove less restrictive on the freedom of the individual and still achieve the desired benefit for the adult? Are the powers being sought sufficient to meet all the foreseeable needs of the adult or should other powers be granted? 8.7 The public guardian is responsible for the supervision of a person authorised to act under an intervention order, or guardianship order, in respect of property and financial matters. This is a statutory function under the Act. 8.8 There is no automatic supervision by the local authority of an intervention order in respect of welfare matters. It is open to the reporting officer to recommend that supervision would be of benefit in particular situations. The sheriff may then if so minded order supervision by the local authority under Section 3 of the Act. 8.9 The supervision of a welfare guardian is however a statutory duty of the local authority (see supervision guidelines). This will involve the guardian and the adult being visited at least once every six months. The MHO / reporting officer could if necessary make recommendations to the sheriff requesting that specific direction should be given concerning supervision. 12

13 8.10 If the MHO / reporting officer reaches the conclusion that the application should not be supported for any reason, he/she should discuss this fully with the team leader, mental health team 8.11 If, after discussion with the team leader, mental health team, it is decided the application should not be supported, the reporting officer should arrange, to meet with the applicant and any other appropriate person, to discuss the reasons why the application cannot be supported. This meeting should advise the applicant, where necessary, about any alternative action either using another part of the Act or through other procedures. These alternatives should be included in the report to the court When the report has been completed, it should be sent immediately by recorded delivery to the person who intends to make the application for guardianship or an intervention order. 9. Court proceedings 9.1 It is the responsibility of the sheriff s officers to serve the papers on the adult, the local authority legal staff may discuss / how best to serve the papers with the MHO / officer writing the report or team leader, mental health team. 9.2 The sheriff has considerable discretion as to how he will deal with the application. If the application is not opposed and the report and medical certificates are all clear about the need for an intervention or guardianship order then the sheriff may grant the application with a minimum of formality. 9.3 Where there are any queries or objections, the sheriff may wish to have a hearing at which all concerned, including the adult, will be able to be present and be represented, although this is not a statutory requirement. 9.4 Before granting the order, the sheriff must consider if the adult s interests have been adequately represented and can appoint a safeguarder to represent these interests. 13

14 9.5 The sheriff may make any further enquiries that seem necessary before granting an order. He can request that assessments be carried out and that reports are lodged with the court. 9.6 The sheriff can make an interim order, if it seems appropriate, pending final disposal of the application, which may result in an interim Guardian being appointed. 9.7 The sheriff s decisions may be appealed in the first instance to the sheriff principal and the sheriff principal's decision could, with his consent, be appealed to the court of session. 9.8 The sheriff may appoint a safeguarder whose responsibilities are to safeguard the interests of the adult and to convey the views of the adult to the sheriff. The sheriff may appoint whomever he feels appropriate to act as safeguarder. This person does not need to be a solicitor. 10. Action after order is the granted 10.1 After a guardianship order or an intervention order has been granted it will be the responsibility of the sheriff clerk to notify the Public Guardian. The Public Guardian issues a certificate of appointment, notifies the local authority and where the reason for incapacity relates to mental disorder, the Mental Welfare Commission. The Public Guardian maintains a register of all intervention orders and guardianships When the chief social work officer is appointed as welfare guardian, a named professional will be nominated to carry out the day to day duties of the guardian. The name of this person will have been decided at the case conference The name of the officer responsible for carrying out the functions and duties of guardian must be notified to the adult. Where the reasons for incapacity include mental disorder the Mental Welfare Commission, must also be informed within seven working days of the appointment. 14

15 10.4 The team leader, mental health team, will ensure that the letters notifying the adult, MWC and doctors who completed the medical reports are sent out within the time limit. The MWC will also be sent a copy of the application and its accompanying reports In most instances, the officer responsible for the day-to-day duties of guardian will be the worker who is also responsible for the care management of the adult concerned The chief social work officer is responsible for nominating the social worker to carry out the day to day duties of guardian. This responsibility will be delegated to the team leader, mental health team The nominated worker will be expected to maintain contact with the person under guardianship on a regular basis The frequency of these contacts will vary but should be at least once every three months The frequency of contacts will be agreed between the nominated worker, his/her line manager the adult, carers and relatives, and recorded in the adult s file The nominated worker, acting on behalf of the chief social worker officer, is subject to the same supervision requirements as any other guardian. The senior social worker, mental health team, should ordinarily undertake this supervision; however, there may be occasions in complex cases where the team leader, mental health team, will carry out the supervision of the delegated guardian. This arrangement will be made in collaboration with the nominated officer s line manager In the exceptional case that a local authority officer is appointed intervener in relation to finance/property, the finance department will, in conjunction with the authority s legal services, be responsible for advising social work about making the necessary arrangements once the intervention order has been granted. 15

16 10.12 Special notice must be taken of the code of practice for persons authorised under intervention orders and guardianship orders. In particular the Office of the Public Guardian must be consulted regarding the price to be paid for property that is to be sold, and other major financial transactions. 11 Chief social work officer as guardian 11.1 When the chief social work officer is appointed as welfare guardian a named social worker will be nominated to carry out the day to day duties of the guardian The name of the officer responsible for carrying out the functions and duties of guardian must be notified to the adult and, where the reasons for incapacity include mental disorder, the Mental Welfare Commission, within five working days of the appointment. Intimations will be made to the relevant parties, in standard form, by the team leader, mental health team The chief social work officer is responsible for nominating the social worker to carry out the day to day duties of guardian. This responsibility will be delegated to the team leader, mental health team. The nominated worker will be expected to maintain contact with the person under guardianship on a regular basis The frequency of these contacts will vary from case to case and from time to time but will be at least once every three months The frequency of contacts will be agreed between the nominated worker, his/her line manager, the adult, carers and relatives and recorded in the adult s file The nominated worker, acting on behalf of the chief social work officer, is subject to the same supervision requirements as any other guardian The nominated worker will, therefore, be supervised by a senior officer in relation to their role as guardian in the same way as all guardians. 16

17 12 Supervision of private welfare guardians or welfare power of attorneys 12.1 This concerns the supervision of private welfare guardians and, in some situations, welfare attorneys or persons authorised to act under intervention orders. For the purposes of the Act, people acting in such capacity may be known as proxies Section 10 (1a) requires a local authority to supervise private welfare guardians in the exercise of their functions, and under section 20 (2c) where ordered to do so by the sheriff, to supervise a welfare attorney Reference should also be made to the separate notes concerning the application for guardianship or intervention orders. Staff must also familiarise themselves with the code of practice for local authorities exercising functions under the Act and code of practice for persons authorised under intervention orders and guardians, and the Act itself. There is an abbreviated one page version at the end of this guidance, which is provided to assist, but where detailed information is required reference should be made to the code of practice There has been a steep increase in the number or welfare guardianship applications from private guardians, who are mostly family members or friends of an adult who lacks capacity. This has increased the number of guardians local authorities have to supervise A supervisor would be allocated within the social work department, and would, in most case be a social worker or a mental health officer Supervision offers a means of monitoring the exercising of welfare guardianship powers; however, it is also about providing support to guardians in their role. The Mental Welfare Commission reported in their annual report that private welfare guardians weren t getting enough support from their social work supervisors and many social work supervision officers are unaware of their legal duty to visit both the guardian and the adult on guardianship. So both the adult and the guardian need to be visited and supported. 17

18 12.7 The local authority has a statutory duty to supervise all private welfare guardians. There is no such statutory duty to supervise local authority guardians; however, these local authority officers should receive support, monitoring and supervision in and of their role The local authority must arrange for every adult who is subject to welfare guardianship and his or her guardian to be visited within three months of the order being granted, and subsequently at intervals not exceeding 6 months. Visits may be made more frequently at the discretion of the local authority (LACOP 8.15) The sheriff may also require that the local authority supervise people authorised under an intervention order dealing with welfare issues (LACOP 8.3) The Public Guardian has a parallel responsibility to supervise financial guardians, people authorised under an intervention order for financial purposes, continuing attorneys, and people having authority to gain access to an adult s funds The Mental Welfare Commission also has a role in protecting the welfare of adults whose incapacity relates to mental disorder As financial and welfare matters frequently overlap there will often be a need to maintain liaison between staff supervising proxies with welfare responsibilities, people authorised to act in a financial capacity on behalf of an adult and the Office of Public Guardian and with the Mental Welfare Commission. 13 Supervision of a welfare power of attorney The supervision of a welfare attorney will normally only be required when, an issue of concern has been brought to the notice of the court Any person including the adult themselves may bring a matter of concern to the notice of the court and request that the Sheriff makes an order requiring supervision. 18

19 13.3 It is likely that the social work department will have some prior knowledge of or involvement with the adult and his/her carers, if an order for supervision is made. The team leader, mental health team, will be responsible for nominating an individual for the supervision as required by the sheriff An appropriate supervisor will be nominated within three working days. This work would be regarded as high priority and will be negotiated with line managers The welfare attorney and the adult should be visited at least once a month or at a frequency directed by the sheriff, and for as long as the sheriff directs The sheriff will specify in the court order any particular requirements of the supervision order and the person undertaking the supervision should be guided by this order Joint visits may be made to the adult and the welfare attorney Visits should sometimes be made to the adult and the holder of the power of attorney separately. This is especially important if there appears to be any conflict between the welfare attorney and the adult. 14 Supervision of a person authorised under an intervention order The sheriff may make an order requiring that an individual authorised under an intervention order should be supervised This is only likely to be required if someone has brought to the sheriff s notice an issue which suggests that supervision would be of benefit Anyone, including the adult themselves, can draw the sheriff s attention to something that would lead to a direction for supervision to be given. It would be possible for this to be contained in the MHO or chief social work officer s report when the sheriff is considering the initial application. 19

20 14.4 It is likely that the social work department will have prior knowledge and or involvement with the adult and his/her carers if an order for supervision is made. The team leader, mental health team, will be responsible for nominating an individual for the supervision, as required by the sheriff An appropriate supervisor will be nominated within three working days. This work would be regarded as high priority and will be negotiated with line managers If supervision of a person holding an intervention order for welfare matters is required the sheriff is likely to give instructions as to frequency of visits duration of supervision requirement etc, as specified in Scottish Government Regulations If the sheriff does not give directions the person holding the intervention order and the adult should be visited at least once per month As with the supervision of welfare attorneys, the adult and the person holding the intervention order may be visited together but consideration should also be given to visiting the adult on his or her own from time to time. 15 Supervision of Private Welfare Guardians 15.1 The supervision of private welfare guardians is a statutory duty of the local authority, is determined by regulations made under sections 10(3a) and 86 of the Act The regulations stipulate the intervals within which a local authority must arrange visits; which, apart from the initial visit which must be made within three months, subsequent visits would be made at intervals of not more than of six months of each. Additional visits may be made at the discretion of the supervisor. Welfare guardians and those under guardianship may be visited together but it is good practice for the adult to be seen separately on at least some occasions The local authority may delegate another body to carry out supervisory visits. for example the welfare guardian may live in another authority in which case Scottish 20

21 Borders Council could request the authority in which the welfare guardian lives to carry out the supervision of the welfare guardian Visits to the welfare guardian and the person under guardianship will normally be made by prior appointment. Visits may be made unannounced if it is felt appropriate to do so, particularly if there are concerns about the welfare of either the adult or welfare guardian A formal note of the visit will be made and a copy should be sent to the welfare guardian. This information may be used as a basis for further action by the local authority at a later date The purpose and process of supervision are clearly laid out in the codes of practice for local authorities (new code of practice at chapter 8 [page 76]) exercising functions under the act and the code for persons authorised under intervention orders and guardians. Staff must familiarise themselves with these codes of practice. Purpose of supervision 15.7 Welfare guardianship should be used to promote as well as protect the personal welfare of an adult. The supervision of the guardian should be part of this process The purpose of supervision is detailed in part 7of the local authority code of practice and in part 5 of the code of practice for persons authorised under intervention orders and guardians Supervision is intended, amongst others, to ensure that the proxy is carrying out their duties properly and that the adult s interests are safeguarded, to identify whether a guardianship remains necessary or requires variation, and to identify and deal with any difficulties The principles of the Act may be used in the supervisory process, e.g.: Is the proxy applying the least restrictive approach in relation to the adult? 21

22 Is the proxy s use of the powers providing a continuing benefit to the adult? Is the proxy taking continual account of the present and past wishes of the adult? Are the views of relevant others being considered by the proxy? Is the order being applied in a way which allows the adult to exercise and develop skills and abilities? Specifically supervision is: To ensure generally that the proxy is exercising powers in such a way that person s interests are being safeguarded and promoted in line with the principles; To assess the impact of any significant changes in circumstances on the person s welfare and the management of guardianship; To identify whether a guardianship order continues to be necessary at the end of the period for which it has been made and whether it should be renewed, recalled or the powers varied; To confirm that the criteria for suitability to be appointed as guardian at section 59 of the Act are still met; To identify if an application should be made to the sheriff for a joint or substitute guardian to be appointed; To identify if an application should be made for other orders under the Act about the exercise of their powers by proxies. To identify if an application should be made to the sheriff for the guardian's powers to be varied, or for any ancillary order, for example imposing conditions or restrictions on the guardianship order, to be imposed or varied; To identify any potential need for the power or proxy to be replaced or removed Supervision should be used to check, for example, that the guardian is maintaining satisfactory personal contact with the adult, through visits, phone calls or other means appropriate to the adult s circumstance See Appendix 1 for an abbreviated version of the supervision of non-local authority proxies. 22

23 16 Record Keeping 16.1 All guardians and people acting under intervention orders are required to keep records of their actions A specific purpose of visiting proxies is to enable the authority to inspect the records that all proxies are required to keep under the Act: (a) section 21 for attorneys; (b) section 54 for persons authorised under an intervention order; and (c) section 65 for guardians. No format is prescribed for records, but guidance is given to proxies in the relevant codes of practice Where a member of social work staff is acting as welfare guardian all records concerning the guardianship should be maintained in a separate file, which will only contain documentation relevant to the adult s guardianship Persons authorised under intervention orders and guardians will be required to keep a file specifically relating to their responsibilities as guardian / intervener For welfare guardians records to be kept should include: A copy of the original guardianship order and any variation; The certificate of appointment as guardian issued by the Public Guardian; Contact details of the local authority supervisor (for private guardians; Name address and contact details of anyone having financial powers (whether under the adults with incapacity act or through other appointments i.e. DWP appointeeship); Details of the adult s care plan, including contact details for everyone concerned with its delivery; Name and address of all relatives, friends and others who have an interest in the adults welfare; Contact details for any professionals with whom contact will be needed; A note of any key decisions required in the foreseeable future; Notes about any action taken; Copies of all correspondence; 23

24 Notes of any important phone calls; Copies of any invoices for purchases incurred. These will be required to gain reimbursement. Even if the welfare guardian does not have financial powers it may be possible to seek authorisation from the Public Guardian to make significant purchases from the adult s estate where these purchases would be for the benefit of the adult For people acting under intervention orders, the records to be kept will be similar, and should include: A copy of the court order granting the intervention order; A written plan for the implementation of the order; A note of all actions taken including all appointments attended by the adult; All correspondence relating to the intervention order; A note of any reviews of the intervention order, particularly where the order is to last for a significant period of time; A note of any expenses so that reimbursement can be claimed; A note concerning the completion of the order For intervention orders, relating to finance or property the records should include: A copy of the court order granting the intervention order; A written plan for the implementation of the order; A copy of the updated Land Certificate where the order relates to heritable property; Any correspondence concerning the exercise of powers granted by the order; Copies of all bank statements or other financial information; Notes of all actions taken relating to the purchase or sale of property; Notes of all reviews of the powers granted particularly where the intervention order will be valid for some time i.e. the operating of a bank account; A note of any expenses incurred so that reimbursement can be claimed; A note of action taken on completion of the order Every effort will have been made before the intervention order was applied for to find an independent financial manager to act on behalf of the adult. 24

25 16.9 Social work staff may, however, be consulted by private individuals acting under the authority of an intervention order about what records should be kept. The Public Guardian will also be able to advise them about this. Change of address If the adult or a person authorised under an intervention order or guardianship order changes address the public guardian must be notified within seven days. The person responsible for this notification is the person authorised under the intervention Order or the guardian or in the case of the local authority, the team leader (mental health team). Consultation In providing advice and consultation, the general principles of the Act must apply at all times. The worker responsible for the supervision of a guardian should therefore be proactive in consulting with all relevant people, including the adult, about all matters relating to the adult s welfare The adult themselves, the nearest relative, primary carer and anyone else with an interest in the adult s affairs or whom the sheriff has directed to be consulted must be given a regular opportunity to give their views The worker and his/ her line manager will determine how this consultation will take place in each case Because each case will vary, the means of consultation needs to be flexible to meet the individual circumstances. Reports to the Local Authority Any person being supervised by the local authority in the exercise of his/her duties as a proxy may be requested to provide reports and other information to the authority. 25

26 16.16 The sheriff may make a direction requiring specific information to be provided Significant accidents or incidents should be brought to the attention of the local authority by the proxy. 17 Reviewing guardianship 17.1 All local authority and private guardianship orders will be subject to regular and continuous review. This will be determined by the needs and circumstance of each case. Local authority guardianship orders should be reviewed at least every six to twelve months or earlier if necessary. Private guardianship orders, where the local authority supervises these guardians, should be reviewed annually Formal guardianship reviews should normally be chaired by the team leader, mental health team, and would include the acting and named guardians, care manager, the adult, relatives, independent advocacy worker, and other with an interest The review would consider how the order is being exercised and whether or not there is a need for continued guardianship, and whether the guardianship should be recalled or not A minute of the review would be taken. 18 Renewal of guardianship order 18.1 The local authority has a duty to apply for renewal of guardianship where the criteria for guardianship still apply and no-one else is doing so A review of guardianship should be prompted before the expiry of an existing guardianship order. The OPG will issue a reminder to all guardians three months prior to the expiry of the existing guardianship order. Reminders will therefore provide a fall-back to ensure that renewal of the order is considered properly. 26

27 However, normal review procedures should generally ensure that renewal is looked at earlier, to allow time to prepare a renewal application as appropriate The application may be dealt with by the sheriff on the basis of a Minute and written reports, without the need to hold a hearing in court. However, if the sheriff is not satisfied by the information provided, he/she can call for further reports or have a hearing The renewal process involves an application to the sheriff, accompanied by a medical report in prescribed form, of an examination and assessment carried out not more than 30 days prior to the lodging of the renewal application. If the incapacity is by reason of mental disorder, the report should come from a medical practitioner with experience in the relevant field For renewals of welfare guardianship the application must also be accompanied by a report provided by an MHO, or in cases of inability to communicate due to a physical condition, by the CSWO. The report will give an opinion as to the appropriateness of continuing the guardianship and the suitability of the applicant to continue For renewals of financial appointments, the application must be accompanied by a report by the Public Guardian giving an opinion on the conduct of the guardianship to date and the continuing suitability of the guardian. 19 Recall of welfare guardianship by the local authority guardian 19.1 Recall is appropriate where, for example, the adult has gained or regained capacity to manage the affairs covered by the guardianship order. The local authority and the MWC may recall the welfare powers of a guardian on the same grounds as those for recall by the sheriff The local authority is able to recall the guardianship at its own instance or on the application of another person. Where the local authority is recalling a guardianship where the chief social work officer is guardian, it must intimate the proposed recall to 27

28 the MWC and PG, as well as to the adult, the nearest relative, named person and primary carer and anyone else who may have an interest If any objections about the recall are received the local authority must remit the matter for determination by the sheriff. 20 Reference Material 20.1 Reference must be made to the Act, its Explanatory Notes, the Local Authority Code of Practice, and the Codes of Practice for Persons Holding Powers of Attorney and Persons Authorised under Intervention Orders and Guardians Copies of the Act, Explanatory Notes and Codes of Practice will be available in all Lifelong Care Social Work local offices Access to the Act, Explanatory Notes, Codes of Practice and other information may also be obtained from the Scottish Office website at; Information and advice concerning the Act may be obtained from The Mental Welfare Commission for Scotland, Thistle House, 91 Haymarket Terrace, Edinburgh, EH12 5HE. Tel: ; Fax ; website: User and carer advice line: Information and Advice, particularly concerning issues of property and finance, may be obtained from the Office of Public Guardian, Hadrian House, Callander Business Park, Falkirk, FK1 1XR Tel website address: Information and advice is also available from many other agencies including Alzheimer Scotland Action on Dementia , Age Concern Scotland , Capability Scotland , and ENABLE

29 Appendix 1: SUPERVISION OF NON-LOCAL AUTHORITY PROXIES (abbreviated) Local authorities supervise all welfare guardians in the exercise of functions. A local authority must arrange visits, except for the initial visit, to the adult and to a guardian initially within 3 months, then visits at intervals of not more than of 6 months. Local authorities are required to supervise welfare attorneys and persons authorised under intervention orders (welfare matters), where ordered by the sheriff. Supervision is intended to ensure that proxies are carrying out their functions properly. The principles must be observed by anyone exercising functions under the 2000 Act. The local authority should consult the adult regularly on the performance by the proxy of his or her functions. The local authority has a responsibility to give a guardian information, support and advice on the exercise of welfare powers. The purposes of supervision of proxies by authorities are: To ensure the proxy is exercising powers in such a way that person s interests are being safeguarded and promoted in line with the principles; To assess the impact of any significant changes in circumstances on the person s welfare and the management of guardianship; To identify whether a guardianship order continues to be necessary; To confirm the criteria for suitability to be appointed as guardian are still met; To identify if an application for a joint or substitute guardian to be appointed; To identify if the guardian's powers to be varied, or for any ancillary order; To identify any potential need for the guardian to be replaced or removed; To identify if an application should be made for other orders under the 2000 Act about the exercise of their powers by proxies. A local authority can entitled to apply to the sheriff for a direction to ensure the guardian is carrying out his or her functions in a satisfactory way; A specific purpose of visiting proxies is to enable the authority to inspect the records that all proxies are required to keep under the 2000 Act. Visits should normally be made by appointment, but in certain circumstances, it might be appropriate for an unannounced visit to be made. Clear records should be kept where the outcome of a visit is the conclusion that action such as application to the sheriff is required. 29

30 Pertinent questions, in applying the principles of the Act to the exercise of the guardians or proxy s powers, are: 1. Is the proxy applying the least restrictive approach in relation to the adult? 2. Is the proxy s use of the powers providing a continuing benefit to the adult? 3. Is the proxy taking continual account of the present and past wishes of the adult? 4. Are the views of relevant others being considered by the proxy? 5. Is the order being applied in a way which allows the adult to exercise and develop skills and abilities? See the Local Authority Code of Practice on the 2000 Act for full details of supervision duties:. 30