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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172 page PDF

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Contents
Code of practice for anyone authorised under an intervention or guardianship order
CHAPTER 2 OBTAINING AN INTERVENTION ORDER

172 page PDF

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CHAPTER 2 OBTAINING AN INTERVENTION ORDER

This chapter provides the following information and guidance on:

  • what an intervention order is, who can apply and the circumstances in which an application will be appropriate
  • the duties which interveners have once appointed
  • making an application
  • supervision arrangements
  • what to do if there is a change of circumstances
  • what happens if there is a complaint against you.

WHAT IS AN INTERVENTION ORDER?

2.1 The general nature of an intervention order is set out in Section 53(5) of the Act. An intervention order is appropriate to deal with single decisions or actions, or an action requiring a longer timescale provided the benefit is clear and the outcome can be predicted (see list of examples in 2.13 and 2.16). An application for an intervention order would have to state the precise decision or action for which authorisation is sought. An application can be made for a financial and/or welfare intervention. The application, which must be accompanied by certain reports, is made to the sheriff court. Once granted, the order is registered with the Office of the Public Guardian. The person authorised to act under an intervention order is called an 'intervener'. Annex 2 sets out the requirements for making an application.

2.2 Many intervention orders will involve the adult's property or financial affairs. Under section 6(2)(a) of the Act, if you are authorised under such an order you will be supervised in its exercise by the Public Guardian.

2.3 Where the person's affairs are moderately complex or uncertain, intervention orders might prove to be insufficient to secure the necessary benefits and a guardianship order may be more suitable. A guardianship order is likely to be more suitable in circumstances where there is one or more major welfare or financial matters to be dealt with and decision-making is likely to be necessary in the long term.A guardianship order can also provide flexibility so that the guardian can respond quickly to new situations without having to go back to court.

2.4 It is impossible to give hard and fast rules about when to apply for an intervention order and when to apply for guardianship. Everything will depend on the circumstances of the adult concerned. Professional advice may be helpful in making such a decision.

2.5 If the person has not received a recent assessment of his/her needs, it would be advisable to make a request for an assessment from the person's local authority social work office. A full assessment should help to identify the support needs of the adult, including any decision-making powers that may be appropriate.

2.6 It is important to give careful consideration to the precise powers required and therefore whether an intervention or guardianship order is most appropriate. It is worth noting that whilst the sheriff can change an application for guardianship into an intervention order, it cannot be done vice-versa (section 58(3) of the Act). In such cases where the sheriff thinks guardianship is appropriate where an intervention order has been applied for, the process of application begins again. The sheriff's decision can be appealed to the sheriff principal and with his or her leave, to the Court of Session.

WHO CAN APPLY FOR AN INTERVENTION ORDER?

2.7 The following individuals or organisations may apply:

  • anyone with an interest in the adult (normally the person's carer) or professional person can apply to the sheriff court to become an intervener. A person authorised under an intervention order will always be a specific person named in the order. It could also be a named officer of an organisation. Usually the person who wishes to act for the adult makes the application and nominates him/herself;
  • the adult can apply for an intervention order and nominate someone to become his or her intervener in respect of a specific decision or action he or she cannot take him or herself;
  • the local authority can apply for a welfare or financial intervention order and nominate itself. Under section 53(3) of the Act, the local authority has a duty to apply for an order in circumstances where the person has been assessed as needing one, but there is no one else willing or able to do so. (For details see the local authority code of practice.)

Note: It is possible for the applicant and the person named in the order to be different people. For example, you may be willing to be authorised under an intervention order but you may prefer the local authority to carry out the technical business of applying for the order, obtaining the necessary reports and appearing before the sheriff. However, this would be at the discretion of the local authority.

  • The court - in criminal proceedings. Under the Criminal Procedure (Scotland) Act 1995, a court may make an intervention order where it considers that it would be appropriate to do so, and where there is no order already in place with the same powers.

CIRCUMSTANCES IN WHICH YOU MIGHT WISH TO APPLY FOR AN INTERVENTION ORDER

2.8 As a private individual you may wish to become an intervener, because, for example:

  • you are the adult's carer, relative or friend, and have become aware of a need which the adult cannot meet by taking action or making a decision personally;
  • you already have powers in relation to the adult as an attorney, a guardian, or withdrawer, but the scope of your powers does not extend to taking the action or making the decision in question.

If an order is needed you should consider if you have the skills, knowledge and time to exercise the powers required, or whether someone else might be better placed.

2.9 As someone with a professional involvement with the adult you may wish to become an intervener or may identify the need for someone else to apply for an intervention order, because, for example:

  • You are already involved in the assessment and care management of the adult and the adult's incapacity is preventing a particular identified need to be met;
  • you are already the adult's continuing attorney or financial guardian, but the scope of your powers does not cover a particular identified need which you or others involved with the adult have identified, e.g. additional financial powers are required or a short term welfare need has arisen;
  • the adult's attorney or guardian is not the appropriate person to deal with a particular matter because of a potential conflict of interest.

2.10 A local authority's involvement in applications for an intervention order will normally stem from enquiries and assessments under section 10 of the Act as well as from care management procedures and will normally relate to a personal welfare need which has been identified through those procedures. Under section 53(3) of the Act, a local authority must seek an intervention order to protect the adult's property, financial affairs or welfare where necessary and where no one else is doing so.

2.11 A local authority's involvement could also stem from the involvement of the criminal justice team with the adult if he or she has been prosecuted or diverted from prosecution.

2.12 A court may, instead of sentencing an offender in criminal procedure, make a guardianship order or an intervention order, under amendments made by the Act to the Criminal Procedure (Scotland) Act 1995.

Further guidance in respect of the duties of local authorities in relation to intervention orders is given in the Code of Practice for Local Authorities exercising functions under the Act.

FACTORS TO CONSIDER BEFORE APPLYING FOR AN ORDER

Circumstances when an intervention order might be suitable

2.13 A financial intervention order could be suitable in the following circumstances (the list is illustrative, not exhaustive).

Financial

  • for dealing with the adult's interest in the estate of a deceased relative;
  • taking legal action to protect the adult's interests;
  • setting up a trust;
  • dealing with the adult's income tax;
  • selling moveable property held by the adult to obtain necessary income, e.g. paintings, antiques, subject to considerations of any bequests;
  • winding up the adult's business affairs;
  • a transaction to buy and sell property;
  • acquisition or sale of the adult's home (dwelling house - special provisions apply see below) e.g. buying a home more suitable to the adult's needs;
  • freezing an adult's assets or funds in order to protect them while suspicions of exploitation are investigated by the Public Guardian;
  • selling the adult's home (but any longer term welfare aspects of moving the adult to different accommodation would be better dealt with through welfare guardianship).

Special provisions where an intervention order covers acquisition or disposal of dwelling house

2.14 Section 53(6) makes special provision in relation to an intervention order which directs the acquisition of accommodation for, or the disposal of any accommodation used for the time being as a dwelling house by, the adult. In such a case the consent of the OPG to the price paid or to be obtained is required before the accommodation is acquired or, as the case may be, disposed of. The OPG is able make a timely response in circumstances where a swift decision is necessary in relation to the property.

This provision will be particularly relevant in the case of an individual or body which seeks to sell an adult's house in order to move the adult into residential accommodation, or acquire a specially adapted house for the adult in place of his or her current home. The intervention order could be used to deal with the property and financial aspects of the transaction. If, however, the adult required ongoing support in relation to financial or welfare issues then a guardianship application may be more appropriate and could incorporate a request for a specific power to sell or acquire the adult's home.

Welfare

2.15 A welfare intervention order may be appropriate in the following circumstances:

  • you already have powers in relation to the person, for example as an attorney or guardian, but the scope of your powers does not extend to taking the action or decision in question e.g. moving the person to a care home;
  • where the person is unable to give consent to significant medical, dental or other treatments, or operations;
  • you require the adult to attend hospital for specific medical treatment or assessment (see below for restrictions).

The above lists are examples and there may be other circumstances in which an intervention order might be suitable.

Matters which may not be authorised under an intervention order

2.16 Under section 53(14) read with section 64(2), an intervention order may not authorise:

  • placing the adult in hospital for the treatment of mental disorder against his or her will;
  • consent to any form of medical treatments set out in The Adults with Incapacity (Specified Medical Treatment) (Scotland) Regulations 2002 made under section 48(2) of the Act, which came into force on 1 July 2002.

Advisability of consulting the local authority or MWC about intervention order relating to personal welfare

2.17 Given that the local authority will be required to prepare a report in connection with an application for an intervention order relating to personal welfare, it would be good practice to consult the appropriate social work office informally if you think you want to apply. If the adult already has a social work officer or care manager, that is the person you should consult. If the adult does not, it would still be advisable to seek social work assistance in reaching your decision whether or not to apply. This will avoid possible later difficulties when the appropriateness of the application has to be assessed against a tight deadline. You should in the first instance contact your local social work office whose address can be found in the telephone book under the local authority for your area. You may also wish to consult the MWC if the order concerns the welfare of an adult whose incapacity is as a result of mental disorder. If the proposed intervention order is likely to involve the delivery of services, an early approach to the bodies or agencies expected to deliver the services would be well advised.

Advisability of consulting the Public Guardian (Scotland)

2.18 If the order will involve property or financial affairs, and you are in doubt about what will be involved, it would be a good idea to consult the Public Guardian informally before applying.

CRITERIA FOR SEEKING AN INTERVENTION ORDER

2.19 The main criterion for seeking an intervention order is the adult's incapacity in relation to the decision or action for which authorisation will be sought and the application of the principles in terms of the least intervention necessary to benefit the adult.

2.20 Bearing in mind this criterion, the need for an intervention order can be determined by applying the following reasoning process:

  • What is the adult's current situation regarding personal welfare and/or property and financial affairs?
  • Consideration should be given as to what needs of the adult are not being met and what changes should be made to the current situation to take account of the adult's needs. The principles must be applied, i.e. benefit to the adult, minimum intervention, taking account of the adult's past and present wishes and feelings, and consultation with nearest relative, primary carer, named person and anyone else with an interest in the adult's personal welfare or property and financial affairs.
  • For example, you should ask yourself whether the adult would want the intervention, if capable. Guidance on ascertaining the adult's wishes and feelings is given in Annex 1. You should also consult other people on whether they think the intervention is necessary to benefit the adult, whether they can think of any less restrictive option, and so on.
  • Has the adult sufficient capacity to take decisions and action him or herself to meet these needs, e.g. appoint an attorney to take the necessary decisions?
  • If not, is there anyone already authorised to take the necessary decisions or action on behalf of the adult? If there is such a person or persons, is he or she, or are they, able and willing to take the necessary decisions or action? This may require you to clarify in your own mind any doubts you have about someone who is already exercising management or decision making powers on behalf of the adult. For example, such a person may be a Department of Work and Pensions appointee who will have authority to claim and receive benefits on behalf of the adult and who will also have authority to act generally on their behalf in respect of social security matters.
  • If there is no-one already authorised, or you have concerns about the ability of someone already appointed (such as attorney or withdrawer) to take the necessary action or decision, should someone be appointed with new powers?

Examples:

  • your relative may have appointed a financial attorney at a time when he or she had modest means;
  • your relative's estate may have increased, for example by inheriting a house, and the financial attorney may not wish to take on responsibility for selling the house and investing the proceeds for your relative's benefit;
  • your relative may have a DWP appointee who has powers to claim and receive benefit on his or her behalf and to deal, generally, with social security matters. The appointee's powers are restricted to dealing with social security benefits, so it may be the case that someone, e.g. a withdrawer, an intervener or financial guardian should be appointed to deal with other financial matters if required.

Nature of the intervention order to be sought

2.21 It will be important in seeking an intervention order to specify in terms what powers are sought. The principles should be applied to the framing of the order. In particular:

  • The precise order sought should benefit the adult and there should be no reasonable way of achieving the benefit without the intervention. The applicant must be able to demonstrate that alternatives have been considered and give reasons for rejecting them.
  • The precise order sought should be the least restrictive option in relation to the freedom of the adult, consistent with the purpose of the intervention. The order should not be sought at all if there is a means of achieving the desired aim without it. The order sought should only seek to impose changes on the adult to the degree that is necessary and no further.
  • Account must be taken of the adult's past and present wishes and feelings. Every effort must be made to ascertain these in whatever way is appropriate and practicable in relation to the particular adult. See Annex 1.

The applicant must be able to explain the steps which have been taken to ascertain the past and present wishes and feelings of the adult about the order being sought and any possible alternatives, and report what these are. The adult will be able to challenge this aspect of the application, as will relatives.

For example, if it is proposed that the adult should sell a valuable painting in order to purchase mobility aids, the adult's sentimental attachment to the painting, and wishes as to a possible purchaser ( e.g. an art gallery rather than private) or to dispose of the property in a particular manner, say as a bequest in a will, should be taken into account.

It will be particularly important to be clear about the sources of evidence for the adult's past wishes and feelings. Guidance on obtaining the views of an adult with communication difficulties is set out in the Annex 1. Where the adult cannot communicate present wishes and feelings despite every effort being made, undue reliance must not be placed on information from one or a restricted number of relatives and associates but a spectrum of views should be obtained.

  • Account must be taken of the views of the nearest relative, named person, primary carer, and of any attorney and anyone else the sheriff has directed should be consulted, and any other person having an interest in the welfare of the adult or the proposed intervention, in so far as it is reasonable and practicable to do so.

Under section 53(1) of the Act the sheriff has power to grant an intervention order if he/she is satisfied that the adult is incapable of taking the action, or is incapable in relation to the decision about his or her property, financial affairs or personal welfare to which the application relates, and that the person nominated to act is suitable to do so.

DEALING WITH CONFLICTS OF INTERESTS

2.22 If you are close to the adult in another capacity such as relative, or carer this could create a conflict of interest between your personal interests and your fiduciary duty to the adult. For example you may stand to inherit money or property under the adult's will but the action required would involve expenditure that would erode this inheritance.

2.23 It is quite reasonable and proper for a person authorised under an order sometimes to take action which would benefit both him or herself and the adult.

  • For example, if the adult is elderly and frail, and his or her carer is also elderly and frail but not lacking capacity, and the carer seeks an intervention order to sell a jointly occupied house in order move into sheltered accommodation, this is likely to be of benefit to both parties.

This balancing of different benefits will be particularly important if the adult is resisting the intervention proposed.

2.24 You can expect, therefore, that the author of the report on your application will consult the adult to find out as far as possible, whether the application is consistent with his or her wishes and feelings, so far as they can be ascertained. The report writer will also consult relevant others and may become aware through this that there is a conflict of interest or views between yourself as applicant and other relatives or others with an interest in the welfare of the adult. (See Annex 2 for details of reports required to accompany an application).

2.25 If you are not sure how to deal with conflict of interest, there are a number of options you could pursue. These would include:

  • asking an independent advocacy project for support for the adult in discussing the matter with you and with the local authority;
  • consulting the Public Guardian, where property and financial affairs are concerned;
  • consulting the local authority or MWC where personal welfare matters are concerned;
  • engaging an independent solicitor to represent the interests of the adult in discussing the matter with the local authority (request information about eligibility for legal aid);
  • requesting the sheriff to make consequential or ancillary orders, or provisions or directions under section 3 of the Act. For example you could ask the sheriff at the time of application or subsequently to order local authority supervision.

2.26 It may be that after consideration of all these factors the person responsible will produce a report which does not support your application. It would not be good practice for the person to do this without discussing the matter with you first and proposing alternative plans to protect and safeguard the adult's interests. You should ask for these points to be provided in writing.

Safeguarding the adult's assets

2.27 Under section 53(7) the sheriff may require a financial intervener to find caution. Caution is an insurance bond to safeguard the adult from loss caused by the actions of the person authorised under the order. The sheriff may dispense with caution or may instruct the Public Guardian to accept an alternative form of security instead of caution (for example, to consign a sum of money through the Accountant of Court).

EFFECT OF INTERVENTION ORDER

2.28 Section 53(9) provides that anything done under an intervention order shall have the same effect as if done by the adult if he or she had the capacity to do so.

2.29 Under section 31(4), the authority of a withdrawer of funds under part 3 of the Act, or of a continuing attorney, will come to an end on the granting of an intervention order relating to the funds or account in question.

2.30 Under section 46(1)(b), managers of an authorised establishment may not manage the funds or hold, or dispose of, the property of a resident under part 4 of the Act, if an intervention order has been granted in relation to the same matter.

2.31 Under section 49(1), if the medical practitioner primarily responsible for the medical treatment of the adult knows that an application has been made for an intervention order in relation to the treatment, then the treatment should not be given unless it is required to preserve the life or prevent serious deterioration of the adult. This can also be applied to permit the doctor to take action under section 50 of the Act, which deals with medical treatment once the intervention order has been granted.

REIMBURSEMENT OF OUTLAYS

2.32 Section 53(12) provides that a person authorised under an intervention order may recover from the estate of the adult the amount of such reasonable outlays as he/she incurs in doing anything directed or authorised under the order.

HOW TO MAKE AN APPLICATION FOR AN INTERVENTION ORDER

The process for making an application for an intervention order is the same as that for a guardianship order. See details in Annex 2.

Note: It is important to ensure that you make the appropriate application. If you apply for an intervention order, the sheriff may consider that this will not give you enough powers and will ask you to make an application for guardianship. For example, you may have thought that an intervention order was enough to authorise the sale of the house, but because the proceeds of the sale must be used to benefit the adult on a continuing basis, a financial guardianship order would be necessary to manage the funds. This would mean starting the whole application process again. However if you apply for guardianship and the sheriff decides that an intervention order would be adequate, he/she is able to grant the intervention order without you having to make a new application.