Publication - Advice and guidance

Code of practice for anyone authorised under an intervention or guardianship order

Published: 24 Jun 2011

Guidance for those authorised to make decisions on behalf of an adult with incapacity.

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Contents
Code of practice for anyone authorised under an intervention or guardianship order
ANNEX 2 APPLYING FOR AN INTERVENTION OR GUARDIANSHIP ORDER

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ANNEX 2 APPLYING FOR AN INTERVENTION OR GUARDIANSHIP ORDER

1 The process for making an application for an intervention on guardianship order is the same. In this annex the term 'order' is used to refer to both types of order.

2 This annex sets out the process of making an application, the reports required to support the application and the time-scales for submitting (lodging) the application to the sheriff court. It also outlines what happens when your application has been lodged, what the sheriff may do at a hearing and what happens when your application is granted. A summary flow-chart is provided at the end of this annex. This shows the basic sequence of events. However, if objections to the application are made or if the sheriff decides to call for further reports or to make an interim order then the process will vary and is likely to take longer.

For family members/carers/friends

3 If you are considering making an application, you may find it helpful to obtain a copy of 'Guardianship and Intervention Orders - making an application. A guide for carers' from the Scottish Government or the OPG. This provides a step by step guide to making an application, either yourself, or though a solicitor.

4 You may also find it helpful to obtain a copy of the DVD 'Making Decisions - Your Rights' which explains in simple terms what guardianship is and what is involved. This is for use with an adult for whom guardianship or an intervention order is being proposed. A key principle of the Act is to gain the views and wishes of the adult (see Annex 1). It is important to involve the adult in your plans as much as possible because his/her views will be taken into account by the sheriff.

THE APPLICATION 'FORM'

5 An application for an order (or for a variation of an order) is made by 'summary application' (unless it is the result of criminal proceedings). There is no standard form as such. A basic 'style' or template is provided for in legislation and is reproduced at the end of this annex. Examples of completed applications for guardian and intervention orders are also reproduced below. However, these will need to be adjusted to reflect the circumstances particular to your application.

6 You may find it useful to engage a solicitor to carry out the necessary legal steps although this is not essential (see guide for carers referred to above). In certain circumstances the expenses of a solicitor can be met by legal aid. Legal aid for Advice and Assistance (the first step to obtaining legal advice about an application) is means-tested based on the income and assets of the adult. If the application taken forward, Civil Legal Aid is available (without a means-test) where the application is for welfare powers or a mix of welfare and financial powers. Where there is no welfare element and the application is for financial powers only, there will be a means test based on the income and capital of the adult. (For further details see Scottish Government Fact Sheet on Adults with Incapacity and Legal Aid at: http://www.scotland.gov.uk/topics/justice/civil/awi.

Applications for powers relating to medical treatment

7 A doctor's authority to treat an adult under part 5 of the Act does not apply where you have relevant powers and the doctor is aware of this, except where it has not been reasonable and practicable for the doctor to obtain your consent. The authority to treat also does not apply where an application has been made for an order with powers relating to medical treatment and has not yet been determined and the doctor knows about this. If you are applying for powers relating to medical treatment you should therefore make sure that the doctor primarily responsible for the adult's treatment knows of your application. (It is likely that this will be the case anyway because of the requirement for medical reports - see paragraph 11.)

Applications seeking the right to deal in heritable property

8 Where you are proposing to apply for a right to deal with, convey or manage any interest in heritable property (including selling a jointly owned house) which is recorded or is capable of being recorded in the General Register of Sasines or is registered or is capable of being registered in the Land Register of Scotland you may find that legal advice on framing the application would be helpful as property matters can be highly technical. Guidance is available from the Keeper's Customer Services Centres (see addresses on page) or at www.ros.gov.uk.

9 The application should specify each property affected by the order, in such terms as to enable it to be identified in the Register of Sasines or, as the case may be, the Land Register. If title to any given property has been registered in the Land Register of Scotland the only specification necessary will be to give the unique Title Number of the property (which appears on the Land Certificate) but it is likely to be helpful to everyone dealing with the application to give a postal address or similar as well as that number. If title to the property rests on deeds recorded in the Register of Sasines a formal conveyancing description (either a particular description or a description by reference) will be needed and again a postal address is likely to be helpful.

THE REPORTS REQUIRED TO SUPPORT THE APPLICATION

10 Various reports are required to support an application for an order. The format of these reports is prescribed in schedules to the Adults with Incapacity (Reports in Relation to Guardianship and Intervention Orders) (Scotland) Regulations 2002, as amended by the Adults with Incapacity (Scotland) Act (Reports in Relationship to Guardianship and Intervention Orders) (S) Amended Regulations 2008. If someone you are asking to prepare a report in support of your application does not already have or know how to obtain the necessary forms, you can refer them to the following website where the forms are available electronically - http://www.scotland.gov.uk/topics/justice/civil/awi. It is better to access the forms electronically because the size of the various sections to be completed can be adjusted to suit. If you have any difficulty with this, please contact the Scottish Government Justice Department (telephone: 0131 244 3581).

MEDICAL REPORTS ON CAPACITY - REQUIRED FOR ALL APPLICATIONS

11 All applications for an order need to be accompanied by two medical reports based on an assessment of the capacity of the adult in relation to the decision-making powers you are requesting.

12 In approaching a medical practitioner for reports, your starting point should usually be the adult's GP or hospital consultant.

13 In a case where incapacity is by reason of mental disorder, one of these reports must be completed by a relevant medical practitioner (this will usually be a doctor approved for the purposes of section 22 of the Mental Health (Care and Treatment) (Scotland) Act 2003 ('the 2003 Act') as having qualifications and special experience in the diagnosis or treatment of mental disorder.

14 As a matter of good practice, the two doctors should examine the adult separately and should complete their reports independently of each other.

15 Medical reports accompanying the summary application should be based on an assessment of the individual carried out not more than 30 days prior to lodging the application with the following exception: a medical report will remain valid even when the medical examination of the adult has been carried out more than 30 days prior to the lodging of the application, provided the sheriff is satisfied that there has been no change in circumstances relevant to the report since the examination was carried out.

16 In the event that a medical practitioner encounters problems in gaining access to the adult for an assessment or interview, or the adult objects to a report being completed, this is not a total block to your application. The sheriff has powers to direct that the adult be assessed or interviewed and reports provided and could be asked to make such a direction.

17 Where the adult concerned does not live in Scotland, he/she may be examined by a medical practitioner in the country where he/she lives provided that the practitioner holds recognised qualifications, has special experience in relation to the treatment of mental disorders and, has consulted the Mental Welfare Commission for Scotland about the report.

Doctors are entitled to charge a fee for the report. If an application is eligible for legal aid then these fees will be included.

'SUITABILITY' REPORT - REQUIRED FOR ALL APPLICATIONS

18 All applications must be accompanied by a 'suitability report' containing an opinion on:

  • the general appropriateness of the order sought, based on an interview and assessment of the adult; and
  • your suitability as the proposed guardian/intervener.

19 A report from a local authority social work or mental health officer is only required in respect of applications requesting welfare powers.

Applications involving welfare powers/welfare and financial powers

20 In applications for welfare powers and cases involving welfare issues: a report, in prescribed form is required from:

  • the Mental Health Officer ( MHO) where the adult's impaired capacity is caused by a mental disorder; or
  • the chief social work officer where incapacity results from an inability to communicate due to a physical condition.

The report, in prescribed form, must be based on an interview and assessment of the adult and nominee, carried out not more than 30 days before the lodging of the application.

Applications involving only property or financial matters:

21 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.

The person writing this report must have sufficient knowledge to comment both on the appropriateness of the order sought and the proposed guardian's suitability. This could be a relative or friend or it could be professional person such as an accountant, bank manager.

GUIDANCE ON COMPLETING THE 'SUITABILITY REPORT': FACTORS THE SHERIFF MUST TAKE INTO ACCOUNT

22 The report must contain the author's conclusions on the appropriateness of the order sought and how he or she has arrived at these conclusions. It should cover any conflicts of interest identified (see chapter 4 paragraph 53). The report should demonstrate that the author has applied the principles to the application.

23 Factors which the sheriff must take into account before appointing a guardian are set out at section 59(3) and (4) of the Act; these provide useful guidance as to what information should be contained in the report on the suitability of a person named in an application for a guardianship order. These factors are:

  • that the person is aware of the adult's circumstances and condition and of the needs arising from such circumstances and condition;
  • that the person is aware of the functions of a guardian (this would include an understanding of, and an ability to apply, the principles);
  • accessibility of the person to the adult and to his primary carer;
  • the ability of the person to carry out the functions of a guardian;
  • any likely conflict of interest between the adult and the person;
  • any undue concentration of power which is likely to arise in the person over the adult;
  • any adverse effects which the appointment of the person would have on the interests of the adult;
  • such other matters as appear to the author to be appropriate.

NOTE: Conflict of interest and undue concentration of power are not to be taken to arise by reason only of the person being a close relative of, or a person residing with, the adult.

24 The report should as a matter of good practice be based on at least one interview with the person nominated if this is not the chief social work officer and it should focus on the aspects above. The views of the adult and others with an interest on the person's suitability must also be taken into account. Conflict of interest issues are discussed in chapters 2 and 4.

Access to the report on suitability

25 If you are the person nominated in the application, you will have a right of access to that part of the report which deals with your suitability to be a guardian or intervener.

WHAT HAPPENS ONCE THE APPLICATION IS LODGED?

26 Once the application is lodged, the sheriff will make an 'order for intimation' - this simply means that the sheriff requires all interested parties, including the adult, to be notified of the application and the date of the hearing. They will receive a copy of the application and the accompanying reports. This provides time for the adult, anyone with an interest in the welfare of the adult to object if they feel the: the adult does not lack capacity in relation to the powers request; that some of the powers requested are inappropriate, or that the applicant is unsuitable.

Under the Act, interested parties include:

  • the adult;
  • the adult's nearest relative;
  • the adult's primary carer;
  • the adult's named person (if there is one and if he/she is different from above);
  • any guardian, welfare attorney or continuing attorney of the adult who has relevant powers;
  • the Public Guardian;
  • the local authority, where welfare powers are being sought;
  • the Mental Welfare Commission, where welfare powers are being sought and the adult's incapacity is by reason of mental disorder;
  • any other person directed by the Sheriff.

27 Where the applicant is legally represented, the solicitor will arrange to notify the above. Where the applicant is a lay person without legal representation, this service is carried out by the sheriff clerk.

Where relevant, reports recommending non-notification to the adult

28 The general rule is that the adult will be notified of your application. Under section 11(1) of the Act, the sheriff can direct that the adult shall not be notified of an application under the Act if he or she considers that such notification would be likely to pose a serious risk to the health of the adult. The court will only make such a finding on the basis of 2 medical reports. The medical practitioners who provide the reports of incapacity could also provide these 2 medical reports. However, this should not be done lightly. It is a very serious matter to seek to intervene in the affairs of another person without notification. This should only be considered if there will be a serious risk to the adult's health, and not simply because it is expected that the adult will take no interest or will be distressed or angry. It should certainly not be considered just because the adult might object to the order.

What may happen at the hearing

29 Arrangements for the hearing will depend to some extent on whether anyone with an interest wishes to oppose the granting of the application. Where this occurs, it may be necessary to continue the application for a further hearing to hear the evidence of witnesses. Where the application is not opposed, the applicant will need to attend court or be legally represented to answer any questions about the application. The adult can be separately legally represented. Anyone else with an interest in the application can also be heard either personally or through a solicitor. after which the sheriff will grant such order as he or she considers appropriate under the Act.

30 At the court hearing, the sheriff has a number of choices. He or she can:

  • simply grant your application; or
  • request further reports, which could include an interview with or assessment of the adult by a safeguarder (usually a solicitor) appointed by the court; and/or
  • make an interim order, pending fuller consideration of the application; or grant the order subject to conditions or restrictions.

31 Generally, the fuller the reports before the sheriff and the more preparation you have done by way of applying the principles to your application, the less likely it is that there will be complications in court. Therefore, it is worth investing time in preparation as set out in the guidance above.

32 It is possible, however, in some circumstances, that others will not co-operate with your application. For example, there is no power in the Act to compel the adult to comply with an assessment of his or her capacity before you make application to the court. It may be necessary to lodge an application with imperfect reports, if, for example, access to the adult has been refused by the adult or a carer. The sheriff can then direct the adult to be assessed or interviewed under section 3(2)(b) and any person obstructing that requirement would be in contempt of court. (See also paragraph 30 about safeguarding the adult's interests in court.)

33 Where the application includes financial powers the sheriff may require caution. However the sheriff can dispense with caution or instruct the Public Guardian to accept an alternative form of security instead of caution, for example, a deposit.

ONCE THE APPLICATION IS GRANTED

Registration and notification of orders

34 Under section 58(7) the sheriff clerk must send a copy of the order to the Public Guardian who must register it.

35 The Public Guardian must and notify the adult (unless the court has directed notification not to be given under section 11), the local authority and the MWC (where the adult's incapacity is a result of mental disorder) and the intervention order relates to the adult's welfare.

36 Once you have received a copy of the certificate from the Public Guardian you can take the decision or action authorised in the order, unless, in the case of a financial intervention order, you were required by the sheriff to find caution before acting. An amendment to the Act allows the sheriff to dispense with the requirement for caution and allow the Public Guardian to accept alternative forms of security (which, if required, you will have to provide before acting).

Orders relating to medical decision-making powers, notify the adult's doctor

37 As noted above, a doctor's authority to treat an adult under part 5 of the Act does not apply where you have relevant powers and the doctor is aware of this, except where it has not been reasonable and practicable for the doctor to obtain your consent. It is therefore very important if you have powers relating to medical treatment that you make sure that the doctor primarily responsible for the adult's treatment knows of your appointment and knows how to contact you.

Orders relating to heritable property

38 Where order relates to heritable property, you must immediately apply to the Keeper of the Registers of Scotland for recording of the interlocutor (court document) 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. You may find it helpful to ask a solicitor to do this on your behalf. Guidance is available from the Keeper's Customer Services Centres (see addresses in Annex 3) or at www.ros.gov.uk.

39 This is an important safeguard for third parties who may become involved in any transaction concerning the property. It also serves to protect the adult and the guardian from the consequences of fraudulent transactions. It would be good practice to inform any mortgage company which holds a loan over the relevant property of the appointment of a guardian.

40 An application for registration must contain:

  • the name and address of the guardian;
  • a statement that the guardian or intervener has powers relating to each property specified in the order; and
  • a copy of the interlocutor (document stating the decision of the court).

41 If the Keeper has recorded the interests in the General Register of Sasines, he/she 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 if the applicant has submitted the Land Certificate. In exceptional cases where there is a good reason why the Land Certificate cannot be submitted the Keeper will update the title sheet for the interest and the applicant will need to request an office copy of the updated title sheet. The guardian must send the endorsed interlocutor or, as the case may be, the updated Land Certificate or an official copy thereof to the Public Guardian who shall enter the particulars in his register of guardians.

See summary flow chart for making an application, and sample summary applications on the following pages.

SUMMARY FLOW CHART: MAKING AN APPLICATION FOR AN ORDER

Step 1 Consider what powers you need to benefit the adult - apply the principles. Informally notify the social work department where the adult lives of your intentions and seek their advice.

Step 2 Visit the sheriff clerk at the adult's local court for the summary application and guidance. Complete the application and make copies to send with your request for reports.

Step 3 Notify the Chief Social Work Officer - allowing 21 days for the Mental Health Officer or social worker to carry out the 'suitability' assessment and write the report. At the same time request the two medical reports.

Step 4 Submit all reports with application to sheriff clerk within 30 days of the assessments and interviews with the Adult.

Step 5 The sheriff will set a date for the hearing within 28 days of receiving the summary application and accompanying reports and the sheriff clerk will send notification to all interested parties.

Step 6 The hearing takes place and the sheriff decides whether to grant the application or require further reports, etc.

Step 7 The sheriff grants the order - informs the Public Guardian who registers it and, in turn, informs relevant authorities and issues the order to the person appointed, subject to qualifications such as need for caution, etc.

SUMMARY APPLICATION - STYLE

Style FORM 23 Rule 3.16.7(1)

SUMMARY APPLICATION UNDER THE ADULTS WITH INCAPACITY (SCOTLAND) ACT 2000

SHERIFFDOM OF (insert name of sheriffdom)

AT (insert place of Sheriff Court)

[A.B.] (design and state capacity in which the application is made), Pursuer

The applicant craves the court (state here the specific order(s) sought by reference to the provisions in the Adults with Incapacity (Scotland) Act 2000.

STATEMENTS OF FACT

(State in numbered paragraphs the facts on which the application is made, including:

1. The designation of the adult concerned (if other than the applicant).

(a) the adult's nearest relative;

(b) the adult's primary carer;

(c) any guardian, continuing attorney or welfare attorney of the adult;

(d) the adult's named person; and

(e) any other person who may have an interest in the application.

2. The adult's place of habitual residence and/or the location of the property which is the subject of the application.)

(insert place and date) (signed)

[A.B.], Pursuer
or
[X.Y.], (state designation and business address)

Solicitor for the Pursuer

Note. This Form should not be used for appeals to the Sheriff. Appeals should be made in Form 24.

EXAMPLES OF SUMMARY APPLICATIONS

Example

SUMMARY APPLICATION UNDER THE ADULTS WITH INCAPACITY (SCOTLAND) ACT 2000

SHERIFFDOM OF Any area

AT Anytown

Mr Robert Smith, 3 Birch Avenue, Anytown, son of Mrs Ann Smith, Pursuer

I crave the court to grant an order under section 57 of the Adults with Incapacity (Scotland) Act 2000 appointing me as guardian with powers relating to the personal welfare and property and financial affairs of Mrs Ann Smith. In particular I seek the following powers:

Powers relating to personal welfare

  • to decide where Mrs Smith should live
  • to have access to confidential documents or information relating to Mrs Smith where she would have access to such documents or information on a personal basis
  • to consent or withhold consent to medical treatment

Powers relating to property and financial affairs

  • to have vested in me the right of Mrs Smith to deal with, convey or manage the heritable property at 2 Rowan Drive, Anytown
  • to open, close and operate any account containing Mrs Smith's funds
  • to claim and receive on behalf of Mrs Smith all pensions, benefits, allowances, services, financial contributions, repayments, rebates and the like to which Mrs Smith may be entitled: and to vary or appeal arrangements
  • to deal with Mrs Smith's income tax
  • to obtain and pay for any goods or services which are of benefit to Mrs Smith

STATEMENTS OF FACT

1. I seek appointment as guardian with the powers set out above in respect of the following adult:

Ann Smith
2 Rowan Drive
Anytown

2. I am Mrs Smith's nearest relative. Her primary carer is Anyshire Council.

My sister has an interest in this application. Her details are:

Mrs Joan Wilson
6 Laburnum Terrace
Inverness

3. Mrs Smith is an eighty year old widow who lives on her own. She has emphysema and has suffered a series of strokes which have left her with difficulties in walking and caring for herself. She is also affected by the onset of dementia. Anyshire Council has been monitoring Mrs Smith's welfare for the past 5 years and a package of support for her in her home has been in place for that time. Mrs Smith is now frequently confused and disorientated and she regularly forgets to take the medicine she needs. In my view, her needs have become complex and unpredictable and they cannot be met if she continues to live alone. As a result of mental disorder, she lacks the capacity to decide where she should live and what care and medical treatment she should receive and she is unable to manage her finances. I have therefore decided to seek appointment as my mother's guardian.

4. My application is supported by the attached reports, as required by section 57(3) of the Act:

  • report by Dr XX of an examination and assessment of Mrs Smith, carried out on
  • report by Dr YY, who is a medical practitioner approved for the purpose of section 20 of the Mental Health (Scotland) Act 1984, of an examination and assessment of Mrs Smith, carried out on .......................
  • report by Mr Arthur Brown, Mental Health Officer, Anyshire Council based on an interview with and assessment of Mrs Smith on

Anytown (signed) Robert Smith Date
or Robert Smith's Solicitor

Example

SUMMARY APPLICATION UNDER THE ADULTS WITH INCAPACITY (SCOTLAND) ACT 2000

SHERIFFDOM OF Any area

AT Anytown

Mr James Wilson, Care Manager, Anyshire Council, Council Offices, Anytown, Pursuer

I crave the court to grant an intervention order under section 53 of the Adults with Incapacity (Scotland) Act 2000 authorising Mr Robert Smith, 3 Birch Avenue, Anytown to take the following action in relation to the financial affairs of Mrs Ann Smith.

  • to sell the heritable property belonging to Mrs Smith at 2 Rowan Drive, Anytown
  • to invest the proceeds from the sale of this property

STATEMENTS OF FACT

1. I seek an intervention authorising Mr Robert Smith to take the action set out above in respect of the following adult:

Ann Smith
2 Rowan Drive
Anytown

2. Mr Smith is Mrs Smith's son and nearest relative. Her primary carer is Sunnyside Nursing Home, Anytown. Mrs Smith's daughter is her welfare guardian. Her details are:

Mrs Joan Wilson
6 Laburnum Terrace
Inverness

3. Mrs Smith is an eighty year old widow. She has emphysema and has suffered a series of strokes which have left her with difficulties in walking and caring for herself. A year ago she left her home at 2 Rowan Drive, Anytown, where she had been living alone, and entered Sunnyside Nursing Home where she has settled in quite well and appears content. It was not clear at that time whether she would be able to return home but she is now also affected by the onset of dementia and is frequently confused and disorientated. She regularly forgets to take the medicine she needs. It is clear from assessment by those involved in her care that she would not be able to return to her home, even with support and she now requires to sell her house to meet the cost of the care which she is now assessed as needing. She does not appreciate that she is now living in a nursing home, believing she is still at home. I have therefore decided to seek authorisation for Mr Smith to sell her house and invest the proceeds.

4. My application is supported by the attached reports, as required by section 57(3) of the Act:

  • report by Dr XX of an examination and assessment of Mrs Smith, carried out on
  • report by Dr YY, who is a medical practitioner approved for the purpose of section 20 of the Mental Health (Scotland) Act 1984, of an examination and assessment of Mrs Smith, carried out on .......................
  • report by Mr William Scott, of Scott and Scott, Solicitors, High Street, Anytown based on an interview with and assessment of Mrs Smith on

Anytown (signed) Fiona Jones
date Anyshire Council
Solicitor for the Pursuer