CHAPTER 3 EXERCISING YOUR POWERS AS AN INTERVENER
DUTIES OF INTERVENERS
3.1 This section sets out the statutory duties which you, as an intervener, are expected to carry out in exercising your powers. If challenged you should have no problem justifying your actions if you are able to demonstrate that you have acted in good faith.
Duty of care
- An intervener or other person acting under the Act is held at common law to owe a duty of care to an adult whose affairs he or she is managing. You must act with due skill and care in exercising the powers you have been given in relation to the adult. Neglect or abuse by an intervener could be an offence in terms of section 83 of the Act if you have welfare powers. Where you have financial powers, if you abuse your position, it is possible that your actions may be considered as theft or fraud and the matter will be reported to the police or, if a professional person, to your supervisory body (or both as appropriate). A professional person acting under an intervention order must demonstrate the skill and care that would be expected of a reasonably competent member of that profession.
Fiduciary duty (position of trust)
- A person authorised under the Act has what is known as a 'fiduciary duty' to the adult. This means that you are in a position of trust with respect to the matters covered by your powers. If you abuse your position, for example by using the adult's funds for your own benefit rather than that of the adult, you may be liable to make good the adult's losses. If you act reasonably and in good faith, you will not be liable for any breach of fiduciary duty. As part of your position of trust, you have a general duty to keep the adult's affairs confidential.
Duty to keep accounts and records
- A financial intervener must keep records of what he or she has done with the adult's funds or property over which they have control). For details see 3.3 and 3.4 (below).
Duty to take apply the principles
- (see chapter 1 paragraph 1.10)
Duty of confidentiality
There are three separate issues that arise under the heading of confidentiality. These are:
- your right to have access to confidential information about the adult;
- the use and proper disclosure of confidential information about the adult;
- your fiduciary duty (the trust placed in you) to maintain the adult's confidentiality.
The issue of access to confidential information concerning the adult should be covered in the intervention order. Similarly your right to disclose information about the adult should have been covered in the order.
Where someone holding confidential information refuses to disclose it to you and your powers do not explicitly authorise you to demand it, then you should consider whether the party in question owes to the adult other duties in addition to the duty of confidentiality which may override the duty of confidentiality, and if so to explain this.
Duty to inform the Office of the Public Guardian (Scotland) of any change in circumstances
- For details of requirements see paragraph 3.8.
MAKE A PLAN TO IMPLEMENT THE ORDER
3.2 It would be good practice for you 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.
RECORDS TO BE KEPT
3.3 Under section 54 of the Act, a person authorised under an intervention order shall keep records of the exercise of his/her powers.
- The records kept should relate clearly to the scope of the powers conferred.
3.4 If the intervention order relates to financial or property matters, it would be good practice for you to start a file containing the following information:
- a copy of the interlocutor containing the intervention order;
- in the case of an order relating to heritable property, copies of the endorsed interlocutor or updated Land Certificate received from the Keeper of the Registers;
- your brief written plan for implementing the order;
- any correspondence concerning exercise of the powers - for example if the powers concern dealing with tax, any correspondence with the Inland Revenue or tax accountants or lawyers; if the powers refer to claiming and receiving benefits, correspondence with the Department for Work and Pensions if the powers refer to taking legal action on behalf of the adult with respect to compensation etc., all correspondence with solicitors and all court documents, etc.;
- if the powers relate to the opening, operating, or closing of an adult's account, or freezing an account to prevent mismanagement while new management arrangements are put in place, any bank statements, passbooks, statements of interest received or other financial information concerning the account, and any correspondence with the fund-holder;
- if the powers relate to buying or selling heritable property, a note of all steps taken including advertising the property, showing the property, setting a closing date for offers, and acceptance of a suitable offer; or alternatively, properties viewed, offers made and final acceptance of an offer. Correspondence with the Public Guardian relating to the price paid or accepted must also be retained;
- if the powers relate to buying or selling property such as shares, antiques etc, any relevant documents such as invoices, receipts, share certificates etc.;
- a note of one or more reviews of the intervention if it is likely to last some time, for example operating a bank account;
- a note of any expenses incurred in exercising the powers authorised under the intervention order, with receipts, so that reimbursement can be claimed;
- a note of the completion of action under the intervention order.
3.5 If the order relates to personal welfare, it would be good practice for you to start a file as above containing:
- a copy of the interlocutor containing the intervention order;
- a brief written plan for implementing the order;
- a note of action actually taken. For example, this could include the medical or dental appointments actually attended by the adult following consent, and the outcome of the any tests or treatment;
- any correspondence with medical practitioners, care home managers or others concerning the matters covered in the intervention order;
- if the intervention order is to last a significant time, such as covering a long course of treatment for the adult, the order should be reviewed at appropriate intervals and a note kept of any review;
- a note of any incidental expenses arising out of the intervention order, with receipts, so that reimbursement can be claimed;
- a note of completion of the order.
LIABILITY AND PROTECTION FOR THIRD PARTIES ACTING IN GOOD FAITH
3.6 Section 53(11) provides that a transaction for value ( e.g. services provided in return for payment) between a person authorised or purporting to be authorised under an intervention order and a third party acting in good faith shall not be invalid on the grounds of some irregularity in the authorisation, etc. Under section 53(13), a similar protection is also extended to a third party acquiring in good faith and for value a title to any interest in heritable property.
3.7 Under section 53(14) read with section 67(4), the person authorised under an intervention order would be personally liable if he or she acts without disclosing that he or she is acting under an intervention order or if he or she exceeds the authority conferred by the order. But if the liability arises only from non-disclosure, the person authorised can be reimbursed from the adult's estate for any claim against him or her personally, in order to safeguard the intervener from personal loss as a result of accidentally forgetting to disclose the capacity in which he or she is acting.
NOTIFYING THE OPG ABOUT CHANGE OF CIRCUMSTANCE
3.8 The Act requires that the OPG is notified of the following changes in circumstances for yourself or the adult, should they occur.
Notifying change of address
- If you change address, or the adult changes address, you are responsible for notifying the Public Guardian within 7 days of the change, who will register the new particulars and notify the local authority and where appropriate the MWC.
Death of a person authorised to intervene
- In the event of the death of a person authorised to act under an intervention order, his or her personal representatives should inform the Public Guardian.
Change in circumstances of the adult
- The circumstances of the adult may change, for example he or she may regain the capacity to manage their his or her affairs for him or herself or his or her requirements may change - for example if the adult inherits property the intervener may need to apply for more powers in order to have authority to manage.
Under section 53(8), the sheriff may, on an application by the intervener, the adult or any person anyone claiming an interest in the property, financial affairs or personal welfare of the adult, make an order varying the terms of, or recalling, the intervention order or any other order made for the purposes of the intervention order.
Death of the adult
- In the event of the death of the adult, the intervener must notify the Public Guardian so that the order may be cancelled (see chapter 7 for details).
SUPERVISION BY THE PUBLIC GUARDIAN
3.9 The Act requires the Public Guardian to supervise any person who is authorised under an intervention order in the exercise of his/her functions relating to the property or financial affairs of the adult.
3.10 Supervision is intended to the ensure that you are carrying out your functions properly and, depending upon the content of the court order, may relate to some or all of your actions with the adult's estate.
3.11 The Public Guardian will in due course call for a report or account from you detailing your actions in implementing the powers you have been given and may also call for sight of bank books, invoices or other material to support the entries in your report or account. Accordingly, it is important that you keep the type of records referred to in paragraphs 3.4-5 above.
3.12 The Public Guardian will inform you of the date by which you require to lodge the initial report or account of your financial management. Failure to provide the report/account by the due date can result in the matter being reported to court and the possible termination of the intervention order. Subsequent progress reports or accounts may be required, dependent on the terms of the intervention order.
3.13 Should the Public Guardian not be satisfied with the account or records produced she will strive to resolve the matter with you but, ultimately may report her concerns to the court and seek to have your powers revoked.
3.14 Your account will be available for inspection by anyone with an interest in the adult's estate.
3.15 If the Public Guardian considers it necessary he may consult the MWC and the local authority if there appears to be a common interest.
SUPERVISION BY THE LOCAL AUTHORITY
3.16 There is no specific provision to order supervision of a person authorised under an intervention order which relates to personal welfare matters. However this may be done by the sheriff under his general powers and is envisaged under section 10(3)(b)(i) of the Act.
3.17 As indicated earlier, supervision can in certain circumstances be a desirable safeguard for you in the exercise of your powers, especially if there are relatives or associates of the adult who disagree with your actions or decisions.
3.18 In some cases, supervision may be imposed after you have started exercising your powers because someone has concerns and has applied to the sheriff for your role to be brought under closer scrutiny.
3.19 If you find yourself in this situation, this does not mean an end to your functions under the intervention order. If you have kept records as recommended above you should have little difficulty in producing the necessary records to reassure the local authority and others that you have carried out your functions correctly.
3.20 Depending on the nature of the intervention order and its duration, supervision may involve visits by a social work officer to yourself and to the adult as well as communication by telephone or in writing.
3.21 If you are ordered to be subject to local authority supervision, you should regard this as a help rather than a threat. The officer of the local authority responsible for your supervision will provide you with necessary advice and support. You should have a meeting with this officer, show him or her your file, and ask what records he or she would like you to keep in future, and what form the supervision will take.
WHAT IF THERE IS A COMPLAINT AGAINST YOU?
3.22 If someone has a complaint against you, and either does not put it to you or is not satisfied with your response, he/she has recourse to the local authority or Public Guardian. The local authority has a duty to receive and investigate all complaints regarding the exercise of functions relating to personal welfare of an adult made in relation to interveners. The Public Guardian has a duty, while the adult is alive, to receive and investigate all complaints regarding the exercise of functions relating to the property or financial affairs of an adult made in relation to interveners.
3.23 The MWC also has an interest where the adult's incapacity is due to mental disorder. The complainer can contact the Commission direct, although the Commission will only investigate a complaint if it is not satisfied with the outcome of a local authority investigation or the local authority has not carried out any or an insufficient investigation.
3.24 The local authority or Public Guardian will contact you about any complaint received and ask you for your version of the facts. If you have applied the principles correctly, have taken advice, have kept relevant documents such as correspondence, have co-operated with supervision and have kept records as recommended above, you should have nothing to fear from such an investigation.
3.25 You will need to produce similar information should the MWC have cause to investigate or reinvestigate the complaint.
POSSIBLE COURT PROCEEDINGS IN THE EVENT OF A COMPLAINT
3.26 A person who is dissatisfied with your actions as intervener also has recourse to the sheriff. An application to the sheriff may be made by any person claiming an interest in the property, financial affairs or personal welfare of the adult. You can also apply to the sheriff for directions under section 3(3).
3.27 The sheriff may dismiss such an application from a person challenging your actions, or may give the applicant or yourself directions. Everything will depend on the case which is put to the sheriff and his or her view of what is required by the principles in the situation which has been set out.
3.28 If necessary the sheriff can vary or recall the intervention order (for further details see chapter 7).