Adults with incapacity: code of practice for those authorised to access funds

Guidance for individuals and organisations authorised to withdraw funds from the account of an adult and apply them for the adult's benefit.


Examination of application

4.1 The OPG will check that the form and appropriate enclosures have been completed properly and lodged within the time frame allowed. If there is a problem a member of staff will contact you, usually by telephone, for clarification. Hopefully any difficulties can be overcome quickly. However, on some occasions it may be necessary to return the form for amendment.

4.2 Staff at the OPG will also check to ensure that no other appointments have been made under the Act to deal with the adult's finances. If that is the case the application will be inappropriate and turned down.

Notifying (intimating) others

4.3 The term 'intimation' simply means to inform or notify. When the application form has been checked, the OPG will send a copy to the people you have identified in your application and may send it to any one else the Public Guardian considers has an interest in the application.

4.4 Where the applicant is both the adult's nearest relative and primary carer, the Public Guardian must send a copy of the application to the chief social work officer of the local authority area in which the adult is resident.

4.5 Twenty one days are allowed for someone who has been sent a copy of the application to object to it being granted. If notification is sent to someone who is resident beyond Europe the intimation period will be extended to 42 days.

4.6 The adult won't be notified where a request not to do so has been successful (see chapter 3, paragraphs 3.21-23).

The next stage

4.7 The Public Guardian will consider the application and provided there is no objection from those who have been notified, and there is no cause for concern, the Public Guardian will issue the relevant certificate.

If someone objects or if the Public Guardian has concerns then the following procedures will apply.


4.8 Objections have to be in writing. If the Public Guardian receives an objection to your application you will be sent a copy of the objection and be given an opportunity to respond. If further information is required the Public Guardian will arrange a hearing.


4.9 A hearing is the opportunity for the Public Guardian to gather as much information as possible to allow a decision to be made relative to the application. You and others may be invited to separate individual hearings which may be held face to face, by letter or by telephone.

4.10 If, during the hearing you feel that the matter might be better dealt with by a sheriff, you can ask the Public Guardian to refer the matter to the sheriff to deal with. The decision of the sheriff will be final.

Legal advice

4.11 There is no requirement for you to have a solicitor present at a hearing but there is nothing to stop you getting legal advice if you wish. Your solicitor may attend the hearing with you. You may be eligible for legal aid for Advice and Assistance which is based on the adult's resources.

The outcome of a hearing

4.12 After the hearing the Public Guardian can do one of three things, namely,

  • grant the application;
  • refuse the application; or
  • remit the matter to a sheriff to decide.

You will be advised of the decision in writing.


Why an application may be refused

4.13 While it is unlikely that the Public Guardian will refuse an application there are occasions when this may happen. For example:

  • there may already be another procedure in place to deal with the adult's funds;
  • someone successfully objects to the application;
  • another form of intervention may be more appropriate.

Where the Public Guardian intends to refuse the application you will be advised of the reason and given the opportunity to appeal.

The appeal process

4.14 If the Public Guardian refuses to grant your application you can appeal to the sheriff. Equally anyone with an interest in the application may also appeal to the sheriff.

4.15 If you or an objector asked the Public Guardian to remit the whole matter to a sheriff to deal with, and the Public Guardian refused to do so, you or the objector can appeal against this decision as well.

4.16 An appeal to a sheriff is a formal procedure which involves attending court hearings. The court will normally be the one nearest to where the adult currently resides. You should contact the sheriff clerk at the court where you intend to appeal for general information.

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