Adults with incapacity: code of practice for local authorities

Guidance for local authority staff with duties and powers under the Adults with Incapacity Act 2000.

This document is part of a collection

Chapter 6 The local authority as intervener or guardian


6.1 Section 53(3) provides that where it appears to the local authority that;

(a) the adult is incapable as mentioned in section 53(1); and

(b) no application has been made or is likely to be made for an order under this section in relation to the decision to which the application under this section relates; and

(c) an intervention order is necessary for the protection of the property, financial affairs or personal welfare of the adult,

they shall apply for an intervention order under this section.

Responsibility within the local authority for seeking an intervention order

6.2 The need for an intervention order under the 2000 Act is likely to emerge as a result of normal assessment and care management procedures, whether prompted by an investigation under section 10 or the 2000 Act or otherwise.

6.3 Unlike guardianship, responsibility for seeking an intervention order is not allocated to the CSWO. However, the intention to seek an intervention order must be agreed with line management and the resource implications identified.

6.4 A person authorised under an intervention order will always be a named individual. This could be someone involved with the adult who has agreed to be named in the application, such as a relative or friend or a professional person. It could also be a named officer of a voluntary body.

6.5 Where no-one else is willing or suitable to be authorised, it is implicit in the 2000 Act that an officer of the local authority must be nominated in the application. An officer of the local authority can use this means to protect an adult's property and financial affairs as well as personal welfare.

6.6 An intervention order could not be used, however, as a way for a local authority to enforce a debt owed by the adult, unless it can be demonstrated that this would benefit the adult. For example if the adult owes rent, and would become homeless if this is not paid, it might be an appropriate use of an intervention order to get the rent paid.

6.7 Normally, responsibility for seeking an intervention order will lie with officers involved in assessment and care management. However, their use may develop among offender teams for example; and children and families teams where there is a one off or ongoing but focussed issue concerning a particular adult family member.

6.8 Where an officer is considering recommending an intervention order, the local authority legal team should be consulted. A proposal to seek an order to deal with an aspect of the person's property or financial affairs, such as the sale of the person's home to pay for residential care, should also be sent to the local authority finance department.


Protection of property

6.9 Where a local authority is granted the power under an intervention order to protect property, it must ensure that appropriate and sensible precautions are taken including turning off gas, water and electricity, removing perishable foodstuffs and securing the property. It should not be normal practice to arrange for windows and doors to be shuttered or to change locks unless there are compelling reasons for doing so. In all cases, careful consideration should be given to the benefits or otherwise of involving relatives and neighbours in securing and protecting property.

6.10 Where officers intend entering a property when the adult is not present, the police, the client, relatives and the relevant housing authority or landlord and insurance companies, if known, should be notified. All local authorities should already have in place procedures for staff to follow when entering a property of an individual who is not present. Social work staff should keep a written inventory of any items which are removed from the property for safe keeping, either by staff or relatives, and decide when a full inventory of all property should be made.

Intervention order relating to heritable property

6.11 Where an order relates to heritable property, the person authorised under the order must immediately apply to the Keeper of the Registers of Scotland for recording of the interlocutor containing the order in the General Register of Sasines or, as the case may be, for registering of it in the Land Register of Scotland. This is an important safeguard for third parties who may become involved in any transaction concerning the property. Where an officer of the local authority is authorised under the intervention order, this matter should be attended to by the local authority legal team.

6.12 An application for registration must contain:

  • the name and address of the person authorised under the order;
  • a statement that the person authorised under the order has powers relating to each property specified in the order;
  • a copy of the interlocutor.

6.13 If the Keeper has registered the interests in the General Register of Sasines, he will send an endorsed interlocutor to the applicant. If the Keeper has registered the interests in the Land Register, he will send the applicant an updated Land Certificate. The person authorised under the order shall send the endorsed interlocutor or, as the case may be, the updated Land Certificate or an office copy thereof to the Public Guardian who shall enter the particulars in his register of persons authorised under intervention orders.

6.14 Under section 53(6) a person authorised under an order to acquire or dispose of accommodation for the use of the adult must first obtain the consent of the OPG to the price he/she proposes to pay for, or accept for, the accommodation.

6.15 Other circumstances where an intervention order may be used by a local authority are to obtain confidential information ( e.g. financial details) or to sign for or dispose of tenancies.

Make a plan to implement the order

6.16 It would be good practice for the person who is authorised under an order, to draw up a plan to implement the order, specifying when action will start, when it will be completed, and what steps have to be taken in between. For example, in order to sell an adult's home it will be necessary to plan a timetable for advertising the property, receiving offers, consulting the Public Guardian, accepting an offer and concluding the transaction.


6.17 Section 57(2) of the 2000 Act provides that where it appears to the local authority that:

  • an adult is incapable in relation to decisions about, or of acting to safeguard or promote his or her interests in his or her property, financial affairs or personal welfare, and is likely to continue to be so incapable; and
  • no other means provided by or under the 2000 Act would be sufficient to enable the adult's interests in his or her property, financial affairs or personal welfare to be safeguarded or promoted; and
  • no application for guardianship has been made or is likely to be made; and
  • a guardianship order is necessary for the protection of the property, financial affairs and/or personal welfare of the adult,

they shall apply under this section for an order.


6.18 Although formally the CSWO becomes the welfare guardian, responsibility for carrying out the duties of a welfare guardian will lie with social work officers.

6.19 Under section 64(6) the duties of a guardian may be delegated. Under section 64(9) where the chief social work officer of the local authority has been appointed guardian he/she shall, not less than 7 working days after his/her appointment, notify the adult and (where the adult's incapacity is due to mental disorder) the MWC, of the name of the officer responsible at any time for carrying out the functions and duties of guardian.

6.20 Where it has already been decided by the sheriff under section 11 that intimation or notification to the adult would be likely to pose a serious risk to the health of the adult, then notification to the adult is not required.


6.21 Although local authority involvement in guardianship is largely confined to welfare guardianship, for completeness, the legal provisions affecting applications for guardianship over property and financial affairs are also covered below where relevant to an application made by the local authority. However, the needs assessment should take full account of adult's needs in terms of financial management, and the type of intervention most appropriate to meeting the need, e.g.DWP appointeeship where the person's only income is from state benefits; the access to funds scheme where the adult is in receipt of income other than or in addition to benefits but the management of funds remains simple; financial guardianship where the adult owns assets and or property that require more complex management.

6.22 The local authority has a duty to apply for financial guardianship under the 2000 Act in respect of property and financial affairs where this is necessary to protect the adult's affairs and non-one else is applying.

6.23 In these circumstances the local authority will need to work closely with relatives and friends and others to see if someone is prepared to be nominated to act. The local authority is not allowed to exercise powers of guardianship in respect of property and financial affairs. If no one else is willing or able to act, the local authority can nominate a suitable person, such as a solicitor or accountant.

6.24 The 2000 Act does give local authorities the power to nominate themselves as financial interveners (but not as financial guardians) where appropriate.

6.25 The 2000 Act enables organisations, including local authorities, to apply to the OPG to access funds on behalf of an adult, where necessary, unless someone else has been authorised to do so. In many cases the Access to Funds scheme will be the least restrictive intervention available to meet the financial management needs of the adult (see Code of Practice for individuals and organisations authorised under the Access to Funds Scheme).


6.26 The 2000 Act does not deal expressly with urgency. In particular, there is no provision to expedite applications for intervention orders or guardianship, including interim guardianship, in case of urgency. An application for an interim order may be heard and granted by a sheriff within a few days if the need is very pressing, however this still requires a full summary application with reports.

6.27 The local authority may therefore need to take action under other provisions, in order to safeguard a vulnerable adult potentially at risk of harm, that is, under the 2007 Act, or where the person has a mental disorder and is unable to consent, by using their powers under the 2003 Act.


6.28 In seeking a guardianship order, the local authority should consider current and foreseeable needs. When the 2000 Act was introduced the indicative initial period for guardianship was 3 years or for a period decided by the sheriff, depending on the potential for the adult's capacity to change over time. However the number of guardianship orders granted for an indefinite period has increased considerably. It would be good practice for the suitability report to indicate a period at which a review would be appropriate to the individual. The adult's capacity could deteriorate or improve. Local authorities should ensure that they hold an internal review of their own guardianships annually.


Incapacity reports

6.29 Under section 57(3)(a) reports, in prescribed form, of an examination and assessment of the adult carried out not more than 30 days before the lodging of the application by at least two medical practitioners one of whom, in a case where the incapacity is by reason of mental disorder, must be a medical practitioner approved by Ministers for the purpose ( i.e. medical practitioners approved under section 22 of the 2003 Act. Sheriffs can use their discretion in accepting medical reports which are older than 30 days where there has been no change in circumstances since examination was carried our relevant to the matters covered in the report. However, an extension should only be sought in exceptional circumstances. The 30 day time scale should be adhered to whenever possible to keep matters progressing for the benefit of the adult.

Reports on the appropriateness of the order sought

6.30 Where the application relates to the personal welfare of the adult, a report is required 57(3)(b) in prescribed form, from the MHO, or in a case where the adult's personal welfare is in jeopardy only because of the inability of the adult to communicate, from the CSWO (who may delegate preparation of the report to a suitably qualified officer, but who must sign the report).

6.31 The report must contain the author's opinion as to the general appropriateness of the order sought. As indicated above, this section of the report should cover the question of how the author has arrived at his/her conclusions and should cover any conflicts of interest identified. The report should demonstrate that the author has applied the principles and has considered whether there were less restrictive alternatives that could have achieved the benefit sought. The section on alternatives considered could also, if appropriate, be used to cover any counter proposals which are being made by others with an interest in the adult's affairs.

6.32 The suitability of the CSWO does not need to be explained as the criteria apply only to individual guardians.

Dealing with conflict of interest

  • Between the local authority and the adult

6.33 In deciding to apply for guardianship or an intervention order the local authority should be aware of, and should be ready to address in reports, any possible conflict of interests. Conflicts of interest may arise because of the role of the local authority in both safeguarding welfare and providing services.

6.34 The person carrying out the suitability assessment may identify a conflict of interest between the local authority and the adult.

Example: the local authority may be owed money by the adult, but an order is being sought to spend the adult's money on his/her own needs.

6.35 The issue is not a new one and can already arise in the course of assessment and care management. The key to dealing with potential conflicts is to apply the principles and where appropriate to seek an independent view on the way forward, possibly in the form of orders, provisions or directions from the sheriff under section 3 of the 2000 Act.

6.36 The report writer should be clear about the local authority's position as both care provider and having responsibility to protect and safeguard the adult. Guidance may need to be sought from a senior social work officer, or occasionally at a higher level within the local authority, on balancing these roles. Ultimately it will be a judicial matter to resolve any conflict between the local authority's responsibility to provide services and the role of its officers as proxies for any particular adult.

  • Between the local authority and others with an interest in the affairs of the adult

6.37 Sometimes the local authority will take one view of the person's needs, but the others with an interest take a different view. This could arise where, for example, the local authority believes that the relatives do not have the skills to exercise guardianship but they believe they can manage. The nearest relative and relevant others should be informed of their right to object to the local authority application.

Applications relating only to financial or property matters

6.38 Under section 57(3)(c) where the application relates only to the property or financial affairs of the adult, a report, in prescribed form, is required, based on an interview and assessment of the adult carried out not more than 30 days before the lodging of the application, by a person who has sufficient knowledge to make a report as to:

  • the general appropriateness of the order sought;
  • the suitability of the individual nominated in the application.

6.39 The suitability (schedule 8) report does not therefore need to be made by a MHO or the CSWO but could be made by an independent professional such as a solicitor or accountant. The completion of a suitability report is necessary even where the CSWO is applying for a financial guardianship order and nominating a solicitor and where a named officer of the local authority is seeking authorisation under an intervention order. Local operational procedure should provide guidance to determine 'whether a person with sufficient knowledge' to complete the schedule 8 report would need to be, for example, the person's care manager, or finance staff, depending on the complexity of the order sought and extent of the affairs to be dealt with.

Involving the individual and relevant others (see chapter 4)

6.40 Where it has been agreed that the local authority needs to apply for a formal intervention under the 2000 Act, certain procedures have to be followed.

6.41 It will be normal practice for the adult and relevant others to have been involved as far as possible in discussions and decisions leading up to the application. The care manager will normally explain the application process and the rights of the person and others under the 2000 Act. He/she should be given information about independent sources of help e.g. independent advocacy service, CAB or specialist voluntary organisation such as Alzheimer Scotland or ENABLE; or he/she may wish to seek legal advice and representation in relation to the court proceedings that will be involved.

6.42 In accord with principle 3, the adult should be assisted to communicate his/her views and wishes as far as possible. The guide to communication and assessment for social work and health care staff may be helpful here. (See Annex 2.)

Time limits

6.43 As indicated above, the interview with the adult has to take place not more than 30 days before the lodging of the application. This time limit must be built into the timetable for the necessary preparation work. Managers will also need to bear in mind that the reports are substantial documents which require a good deal of investigation and consideration, and allow for this in planning the workload of MHOs and any others involved.

6.44 This deadline confirms the desirability of identifying the need for an order through assessment and care management procedures, and agreeing with others involved who should make the application and who should be nominated in the order.

Remuneration and expenses

6.45 Section 68(3) provides that the local authority shall meet the cost of any application which it makes in respect of welfare guardianship and shall not be entitled to recover the cost from the estate of the adult. However, in the case of an application for financial guardianship made by the local authority, it shall be entitled to reimbursement from the adult's estate. If there is a combined application, the sheriff shall apportion the cost as he/she thinks fit.

6.46 Where the CSWO is appointed welfare guardian, there is no entitlement to remuneration.

6.47 Section 68(2)(b) provides that where the CSWO is the guardian, outlays shall not include payment for items and services which would normally be provided free of charge by the local authority to a person who does not have a guardian.



6.48 Once the application for an order is granted the sheriff clerk will send a copy to the OPG who will register the particulars and notify the adult, the local authority and the MWC (where the adult's incapacity is a result of mental disorder). The guardian may then start to exercise his/her powers.

Where the CSWO is guardian, notification of the officer who will carry out functions

6.49 Where the CSWO has been appointed the local authority has 7 working days in which to notify the adult (unless the sheriff has decided it would pose a serious risk to the health of the adult to do so), the OPG and the MWC where appropriate, of the name of the officer responsible at any time for carrying out the functions and duties of guardian.

6.50 The 2000 Act does not specify which officer would be nominated to act as guardian. It would appropriate in most cases for the person to whom the role has been delegated to have a specified locus in the local authority's assessment and care management procedures. Care should be taken to make a distinction between providing services and other resources to the individual; and legal decision making and action on behalf of the person. Consideration needs to be given as to whether any potential conflict of interests would be best addressed by having a separation of functions between the care manager and the guardian.

Notification of report writer and legal team

6.51 The local authority should also ensure that the notification is sent to the officer who prepared the report that accompanied the application, who will be responsible for its safekeeping. It should also be copied to the local authority's legal team.


Ensuring officer exercising the functions of guardian, can be contacted

6.52 The guardian must ensure that the adult, the nearest relative or anyone nominated by the sheriff to act in place of the nearest relative, the primary carer, the named person, any other proxy and any other person relevant person, is readily able to contact him/her. The guardian should make available to all of these his/her full contact details, including any other names by which the guardian may be known, his/her preferred contact address, telephone number, fax and e-mail, emergency contact details and the name and contact details of any other person who can get a message to the guardian quickly.

6.53 Absence and out of hours cover arrangements must be made. The 2000 Act envisages one officer exercising the functions, but just as an individual guardian cannot be available 24 hours a day, so an officer exercising guardianship functions cannot be available personally at all times.

6.54 The guardian must warn those who have his/her contact details of any period when he/she will not be available and provide details of who to notify in the meantime.

Carrying out the care plan

6.55 The local authority as guardian, will have sought powers based on a review and assessment of the adult's personal welfare needs and a proposed care plan. As soon as the guardianship order is made, the guardian should take steps to ensure interventions which were envisaged in the application are carried out, assuming there has been no significant change in circumstances.

Hold regular review meetings

6.56 The guardian should ensure that he/she meets with the individual frequently and holds discussions regularly with relevant others. In particular, the guardian should keep in touch with the nearest relative or anyone nominated by the sheriff to act in place of the nearest relative, the primary carer, named person, any other proxy (such as a withdrawer, continuing attorney, financial guardian or person authorised under an intervention order). This should include the individual's care manager (where this person is not the guardian). The frequency of such review meetings will depend on the extent of the guardian's day to day contact with these individuals. However, a formal review might usefully be linked to supervision visits.

Monitor the adult's personal welfare

6.57 It is the guardian's responsibility to monitor the adult's personal welfare. Where there is a change in circumstances a case review will be needed in accordance with Assessment and Care Management Guidance.

6.58 Although a local authority welfare guardian has no financial powers, the guardian should check that the adult's finances remain under control, by regular liaison with anyone having such powers. The local authority may need to apply for a intervention under the 2000 Act if the lack of influence over the adult's financial affairs is impeding the welfare guardian in the exercise of his or her functions. The type of intervention sought will depend on the financial circumstances of the adult and the nature of the decision to be made e.g.DWP appointeeship or Access to Funds may be adequate but if management issues are more complex then a financial guardianship may be necessary.

Proactive exercise of guardianship

6.59 Welfare guardianship should be used proactively to promote the personal welfare of an adult. While the guardian must be ready to react to events, he/she should also seek opportunities to improve the person's welfare within the scope of his/her powers and in applying the principles. Guardianship allows a flexible response to changing circumstances.

Examples: it would allow a young person with learning difficulties to proceed towards increasing degrees of self-sufficiency and independence through tailored interventions encouraging education, training and personal development. It would allow someone with a brain injury to be gradually rehabilitated with progressively less intervention in his/her affairs as the rehabilitation progresses. Alternatively where someone's capacity is in decline, welfare guardianship could be used on a more intensive basis as the adult's condition deteriorates and more intervention is required.

6.60 As a matter of good practice, changes that may be required to guardianship should be sought at an early opportunity. Local authorities should not, for example, wait until the next regular review to initiate action, for example, to recall if guardianship is no longer needed.


6.61 Welfare guardianship carries with it a right to apply to the sheriff under section 70 of the 2000 Act for an order compelling the adult to comply with the decisions of the guardian. The sheriff may, on cause shown, disapply the intimation requirement and corresponding right to object within a prescribed period. The reason for this is that in urgent cases a delay of the prescribed 21 day period can prove detrimental to the welfare of the adult concerned. In a case where the welfare guardian has powers to determine where the adult should live, a sheriff can grant a warrant to a constable to enter premises, apprehend the adult, and take him or her to such place as the guardian may direct.

6.62 It is anticipated that the section 70 procedure will be used only occasionally by welfare guardians, for example to remove the person from an unsuitable place to one where the guardian has decided he/she should live. It represents a potentially substantial encroachment on the personal autonomy of an individual. Before making an order or granting a warrant, the sheriff would have to be satisfied that the principles in the 2000 Act were being met. There would have to be a positive benefit to the adult and the order or warrant would have to be the only reasonable way of achieving that benefit. In dealing with a habitual absconder a new warrant would be needed for each incident.

6.63 The desirability of varying or recalling a guardian's powers, or replacing a guardian, may be identified through day-to-day contact with the adult, or from regular supervision of a welfare guardian. Officers having contact of any kind with the person should therefore be alert to the possibility that changes may be required, particularly where the person's incapacity is not likely to be permanent.


6.64 The 2000 Act does not exempt the local authority guardian from the requirements for supervision. Authorities should, therefore, ensure that the specific supervisory functions are carried out by the line manager responsible for supervision of the named individual who is carrying out the guardianship function.

6.65 The principles must be observed by anyone exercising functions under the 2000 Act and these apply as much to the supervision of local authority guardians as to other proxies. Therefore it would be good practice for the local authority to consult with the person about how he or she feels the guardianship is working. It might be helpful to seek the support of an independent advocacy officer where the person has no family or friends to assist.

6.66 The person's nearest relative, primary carer, named person or anyone else the sheriff has directed to be consulted about his/her personal welfare should also be given a regular opportunity to give their views about how the guardian is exercising his/her functions.


6.67 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.

6.68 A review of guardianship should be prompted before the expiry of an existing guardianship order, in accordance with the authority's review procedures. 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. However, normal review procedures should generally ensure that renewal is looked at earlier, to allow time to prepare a renewal application as appropriate.

6.69 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.

6.70 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.

6.71 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.

6.72 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.


6.73 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.

6.74 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 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. In these cases if any objections are received the local authority must remit the matter for determination by the sheriff.


Change of address

6.75 If the adult changes address, the guardian is required by section 64(4) of the 2000 Act to notify the Public Guardian within 7 days.


6.76 Under section 76 of the 2000 Act, where an adult under local authority guardianship changes his/her habitual residence to take up residence within a different local authority area, the CSWO must inform the CSWO of the receiving authority. The receiving authority then has 7 days to notify the OPG, and in appropriate cases the MWC, of the transfer. Within a further 7 days the CSWO of the receiving authority must notify the adult (unless the sheriff has directed that intimation should not be given to the adult), the OPG, and where appropriate the MWC of the name of the officer responsible for carrying out the functions and duties of guardian.

Habitual residence for guardianship purposes should always be considered separately from issues of care management responsibility.


6.77 Under the Criminal Procedure (Scotland) Act 1995 (the 1995 Act), a court may make an order placing an individual's personal welfare under the guardianship of such local authority or of such other person approved by a local authority as may be specified in the order. This order can only be made if there is no existing guardianship order with the same powers in place in respect of the offender.

6.78 The criminal courts will require the same reports as are required to accompany an application for guardianship or for an intervention order. The MHO may thus be required to report on the general appropriateness of the order sought, based on a recent interview and assessment of the adult. The court will also require to be satisfied that an individual nominated to be appointed as guardian is suitable for the position and is willing to be appointed. Alternatively, if the proposed guardian is the local authority, the court must be satisfied that the CSWO is willing to be appointed. The MHO's report will assist the criminal court in considering the powers that it is appropriate to confer on the welfare guardian and the period for which the guardianship order should be made.

6.79 Officers can notify the court if it is felt that a guardianship order would be appropriate via a social enquiry report.

6.80 Once the criminal court has appointed a welfare guardian under the 1995 Act, the guardianship order is treated in most ways as an order under the 2000 Act. The exception is that an order made by the criminal court may be appealed to that court as set out in section 60 of the 1995 Act. This appeal right is in addition to the options under the 2000 Act of applying to the sheriff court to have the guardianship order varied, the guardian's powers recalled or the guardian removed or replaced. It would also be possible for the local authority or the MWC to recall the powers of a welfare guardian that have been conferred by the criminal court.

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