CHAPTER 4 OBTAINING A GUARDIANSHIP ORDER
This chapter provides information and guidance on:
- what a guardianship order is
- statutory requirements
- general powers that may be granted
- circumstances when an application may be appropriate.
Note: Guidance for local authorities on the use of guardianship is provided in the Code of Practice for Local Authorities in exercising their functions under the Act.
WHAT IS A GUARDIANSHIP ORDER?
4.1 A guardianship order gives authority to act and make specific decisions over the long term on behalf of an adult who is unable to do so for him/herself. The powers granted may relate to the person's money, property, personal welfare and health. An application can be made for a financial and/or welfare order depending on the needs of the individual. The application, which must be accompanied by certain reports is made to the sheriff court for the area where the person lives or has property. The sheriff decides if the individual will benefit from having a guardian and on the suitability of the person or persons who wish take on the duty of guardianship. Once granted the order is registered with the OPG and can then be put into operation. Annex 2 sets out the requirements for making an application for an intervention or guardianship order. The process is the same for both types of order.
Sheriff's power to make guardianship order
4.2 Section 58(1) provides that the sheriff may grant the application, if:
- he or she is satisfied that the adult is incapable in relation to decisions about, or of acting to safeguard or promote his interests in, his property, financial affairs or personal welfare, and is likely to continue to be so incapable; and
- no other means provided by or under the Act would be sufficient to enable the adult's interests in his property, financial affairs or personal welfare to be safeguarded or promoted.
The default period of guardianship is 3 years although the sheriff has discretion to extend this period (including an indefinite period) or reduce it (section 58 (4)). The Act provides for renewals of guardianship when the approved period is coming to an end. For further information on renewals see chapter 7.
WHO CAN BE A GUARDIAN?
4.3 Under section 57(1) of the Act, the following individuals or organisations may apply:
- anyone with an interest in the adult (normally the person's carer, i.e. family member or friend), or professional person, such as a solicitor or accountant. Only a named individual or individuals can be appointed as a guardian (this could also be a named officer in a voluntary organisation). An application may be made for a joint and/or a substitute appointment - see paragraphs 3-9 below).
- Local Authority - the only exception to the above is in relation to welfare guardianship where the local authority may apply and nominate the chief social work officer ( CSWO).
Under section 57(2) of the Act, the local authority has a duty to apply where it appears to the local authority that:
- the adult is incapable in terms of section 58(1)(a) and (b); and
- no application has been made or is likely to be made for guardianship; and
- guardianship is necessary for the protection of the property, financial affairs or personal welfare of the adult.
Note: It is quite possible under the Act for the applicant and the person named in the order to be different people. Example: a family member may be willing to be nominated, but may not feel able to make the application. In such circumstances the local authority has the discretion to carry out the technical business of applying for the order, obtaining the necessary reports and appearing before the sheriff. However, the local authority will only consider this if it agrees that the guardianship order is necessary and there is no one else willing or able to make the application.
4.4 The local authority is not allowed to act as financial guardian itself, but, where an order is necessary, and where no application is being made by anyone else and no one else is willing to be nominated, the local authority will have to find a suitable person to nominate. This is usually a solicitor or accountant.
For further details of the duties on local authorities see Code of Practice for Local Authorities exercising their functions under the Act.
- the adult him or herself can apply for guardianship and nominate someone to become a guardian in respect of a specific decision or action he/she lacks the ability to take.
- The court - in criminal proceedings. Under the Criminal Procedure (Scotland) Act 1995, a court may make a guardianship order where it considers that it would be appropriate to do so and where an order with the same powers is not already in place.
Joint guardians and substitute guardians
4.5 It is possible (sections 62 and 63 of the Act) to apply for the appointment of joint or substitute guardians. This might be suitable if you are concerned about your ability to be available at all times to the adult; or you feel that someone else may have more expertise in relation to the exercise of certain powers, for example, property management.
4.6 The sheriff will normally only appoint as joint guardians parents, children or siblings of the adult. However, if he/she is satisfied that in the circumstances it is appropriate to appoint someone else as a joint guardian he/she can do so. A special case would need to be made for the appointment of a non-relative as joint guardian. For example, you might want to be a joint guardian with personal welfare powers, while financial guardianship is exercised by a professional person.
4.7 Where the guardianship order relates to both financial affairs and the personal welfare of the adult and joint guardians are to be appointed (see below), the chief social work officer ( CSWO) may be appointed guardian in relation only to the personal welfare of the adult.
4.8 If an application seeks the appointment of one or more joint guardians, the accompanying report will need to cover the suitability of each of them.
4.9 Joint guardians are jointly and severally liable for each other's actings. This means that each is fully responsible for the decisions and actions of the other. It is therefore important that each joint guardian should make sure that the others do not act outwith their powers or misuse them. There is an obligation to consult other joint guardians on the exercise of your powers, unless you have agreed in advance that consultation on some aspect is unnecessary or consultation is impracticable in certain circumstances.
4.10 Substitute guardians are provided for under section 63. The substitute guardian is an individual appointed to act as guardian in the event of the original guardian becoming unable to act. An application for the appointment of a substitute guardian may be made at the same time as, or separately after, the original application. The substitute guardian can be an individual or the CSWO. For example, if the original application nominates a relative, but the ability of the relative to continue to act during the full term of the guardianship order is in doubt, the original application may nominate the CSWO as substitute guardian. Note that this would only be in agreement with the local authority and happen in unusual circumstances). Alternatively, if the original guardian lost capacity, an application for a substitute could be made at that stage. This will avoid a fresh application for guardianship having to be made before the expiry of the original term of the order with new reports, etc. The appointment of a substitute (other than the CSWO) is subject to a 'suitability report' (see Annex 2). The powers of the substitute guardian and the expiry date of the appointment would be the same as in the case of the original guardian.
4.11 If, for example, you are concerned that your own health may fail before the term of your guardianship expires, you might like to consider asking for a substitute guardian to be appointed from the outset.
Financial Guardians - supervision by Public Guardian (Scotland)
4.12 Many guardianship orders will involve the adult's property or financial affairs. Under section 6(2)(a) of the Act, if you apply to be a financial guardian you will be supervised in the exercise of your functions by the Public Guardian. The complexity of the requirements will vary according to the size and complexity of the adult's estate.
Welfare Guardians - supervision by the local authority
4.13 Local authority supervision is similarly automatic for welfare guardians under section 10(1)(a). Supervision should be seen as a support and help in exercising your powers and is discussed further in chapter 6.
POWERS OF GUARDIAN - GENERAL PROVISIONS
4.14 An application for guardianship must specify the powers sought in the guardianship order. The principles must be satisfied for each power sought. The Act allows wide flexibility. Where adequate arrangements are already in place to deal with particular matters these should not be displaced by the guardianship order unless there is good reason for doing so. Section 64(1) makes some general provisions. In particular, an order appointing a guardian may confer on him or her:
- power to deal with such particular matters in relation to the property, financial affairs or personal welfare of the adult as may be specified in the order;
- power to deal with all aspects of the personal welfare of the adult, or with such aspects as may be specified in the order;
- power to pursue or defend an action of declarator of nullity of marriage, or of divorce or separation in the name of the adult;
- power to manage the property or financial affairs of the adult, or such parts of them as may be specified in the order;
- power to authorise the adult to carry out such transactions or categories of transactions as the guardian may specify.
4.15 A guardian shall (unless prohibited by an order of the sheriff, and subject to any conditions or restrictions specified in such an order) have power by virtue of the appointment to act as the adult's legal representative in relation to any matter within the scope of the power conferred by the guardianship order.
4.16 A guardian with powers over property and financial affairs shall, subject to certain restrictions, be entitled to use the capital and income of the adult's estate for the purpose of purchasing assets, services or accommodation so as to enhance the adult's quality of life. Such guardians should consider whether the adult is entitled to other forms of financial support to assist in the cost of providing services or accommodation. It will be good practice to involve the adult, the adult's family and carer to ensure appropriate claims are made.
Restrictions on the powers that may be conferred on a guardian
4.17 A guardian does not have the power to consent to marriage or to make a will on behalf of an adult.
4.18 A guardian cannot have the power to place the adult in a hospital for the treatment of mental disorder against his or her will or consent on behalf of the adult to any form of treatment being given under sections 234, 237, 240, 242, 243 and 244 of the Mental Health (Care and Treatment) (Scotland) Act 2003 or prescribed 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.
4.19 Other statutes or rules of law may preclude a guardian from exercising certain powers. For example the law on applications to acquire or renounce UK nationality require the adult him or herself to be of 'full capacity', which is normally interpreted as meaning that the adult must have some understanding of the meaning and effect of such an application. If you are in doubt as to what powers a guardian can exercise, you should seek legal advice.
EFFECT OF GUARDIANSHIP ORDER
4.20 Section 67 provides for the effect of the appointment and transactions of a guardian.
4.21 Under section 67(1), the adult shall have no capacity to enter into any transaction which is within the scope of the guardian's powers unless the guardian has authorised the adult to carry out the transaction. Where a third party is aware that the guardian has authorised the transaction it will not be void only on the ground that the adult lacked capacity in relation to the transaction. The adult's capacity in respect of matters not covered by the guardianship order is unaffected.
4.22 Under section 24(2), the authority of an attorney comes to an end where a guardian is appointed with the same powers.
4.23 Under section 31(4), the authority of a withdrawer of funds under part 3 of the Act comes to an end on the granting of a guardianship order relating to the funds or account in question.
4.24 Under section 46(1)(a), 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 a guardianship order has been granted in relation to the same matter.
4.25 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 a guardianship 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 guardian has been appointed.
LIABILITY AND PROTECTION FOR THIRD PARTIES ACTING IN GOOD FAITH
4.26 Section 67(6) provides that a transaction for value ( e.g. services provided in return for payment) between a guardian purporting to act in this capacity and a third party acting in good faith shall not be invalid on the grounds of some irregularity in the appointment, etc. Under section 79, 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.
4.27 Under section 67(4) a guardian is personally liable if he or she acts without disclosing that he or she is acting as guardian or if he or she exceeds the authority conferred by the order. But if the liability arises only from non-disclosure, the guardian can be reimbursed from the adult's estate for any claim against him or her personally in order to safeguard the guardian from personal loss as a result of accidentally forgetting to disclose the capacity in which he or she is acting.
REIMBURSEMENT AND REMUNERATION OF GUARDIAN
4.28 Section 68(1) provides that a guardian may recover from the estate of the adult the amount of such reasonable outlays as he or she incurs in doing anything directed or authorised under the order.
4.29 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 or she thinks fit.
4.30 Under section 68(4) a non-local authority welfare guardian can only receive remuneration where special cause is shown to the sheriff at the time of making the application. For example, this might be where a voluntary organisation employee is appointed as welfare guardian, or where the private individual has to travel a distance to visit the adult.
4.31 Where the CSWO is appointed welfare guardian, there is no entitlement to remuneration.
4.32 A financial guardian is entitled to remuneration. Remuneration and the amount of outlays to be allowed are fixed by the Public Guardian and may be appealed to the sheriff.
REGISTRATION AND NOTIFICATION OF ORDERS
4.33 Under section 58(7) the sheriff clerk must send a copy of the order to the Public Guardian who must register it.
4.34 The Public Guardian (Scotland) must 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 order relates to the adult's welfare.
4.35 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 order, you were required by the sheriff to find caution before acting. The sheriff has the discretion to dispense with the requirement for caution and allow the Public Guardian to accept alternative forms of security (which if required would need to be provided before acting).
A GUIDE TO FACTORS TO CONSIDER BEFORE MAKING AN APPLICATION
Circumstances in which you might wish to become a guardian
4.36 As a private individual you may wish to become a guardian because, for example:
- You are the adult's carer, relative or friend, and have become aware that the adult can no longer act or make decisions to safeguard or promote his or her interests in financial affairs, property, personal welfare or health care. This circumstance might arise, for example, where the person has severe dementia or severe acquired head injury or stroke.
- You already have powers in relation to the adult as an attorney or withdrawer, but the scope of your powers is insufficiently wide to enable you to take actions or decisions on behalf of the adult in a range of situations that regularly occur.
- You are, for example, the parent of a young person with learning disability and will need to take some or all important decisions on behalf the person in the long term. Section 79(a) of the Act allows for a guardianship order to be applied for in the three month period prior to a young person's sixteenth birthday and for that order to come into effect on the person's sixteenth birthday.
For further details see: 'Guardianship and Intervention Orders - making an application. A Guide for Carers' - details in Annex 2.
4.37 As someone with a professional involvement with the adult, you may wish to become a guardian (or in the case of a social work officer, you think the CSWO should be appointed guardian), or may identify a need for someone else to apply for guardianship, because, for example:
- you are already involved in providing assessment and care management for the adult, and the adult's incapacity is preventing a complex or unpredictable range of needs being met;
- you are already the adult's attorney, but the scope of the powers granted to you by the adult is inadequate in relation to a variety of matters that are coming before you or are likely to come before you in the near future.
4.38 A local authority's involvement in applications for guardianship will normally stem from assessment and care management procedures and will normally relate to personal welfare needs which have been identified through those procedures.
- In the case of guardianship dealing purely with property and financial matters there might be no local authority involvement since there is no need for a social work report to support such an application. However it is likely that the need for financial guardianship will come to light through assessment and care management procedures, for example if a person with moderate means requires to be moved into residential care. In such a case, the CSWO may not be appointed guardian, but if guardianship is the only way to deal with the management of the adult's estate, and no-one else is applying, the local authority has a duty to make the application. This will require the local authority to identify someone prepared to take on the role of financial guardian.
- The identification of a need for welfare guardianship could stem from the involvement of the criminal justice team with the adult if he or she has been prosecuted or diverted from prosecution. A court may, instead of sentencing an offender in criminal proceedings, make a guardianship order, under amendments made by the Act to the Criminal Proceedings (Scotland) Act 1995.
Further guidance for local authority officers on applying for guardianship orders is given in the code of practice for local authorities exercising functions under the Act.
Annex 2 provides detailed information on requirements for making an application for a guardianship or intervention order.
ADVISABILITY OF SEEKING ADVICE - WELFARE GUARDIANSHIP
Local Authority - Social Work
4.39 Given that the local authority will be required to prepare a report in connection with an application for guardianship relating to personal welfare, it would be good practice to consult the appropriate social work office informally if you think you want to apply. The adult may already have a social work officer, in which case that officer should be approached. If he or she does not, it would still be advisable to seek social work assistance in reaching your decision whether or not to apply, to avoid possible later difficulties when the appropriateness of your 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.
4.40 You may also wish to contact the MWC if the incapacity of the adult is as a result of mental disorder. If the proposed guardianship 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 SEEKING ADVICE - FINANCIAL GUARDIANSHIP
Office of the Public Guardian (Scotland) ( OPG)
4.41 The Public Guardian has a responsibility under the Act to support and supervise financial guardians in the exercise of their functions. If you are in any doubt as to what will be involved in becoming a financial guardian, it would be a good idea to consult informally with the OPG before applying, if the order will involve property or financial affairs.
CRITERIA FOR SEEKING GUARDIANSHIP
4.42 The criteria for seeking guardianship are:
- the adult's incapacity; and
- there being no other means under the Act or other appropriate legislation to achieve the necessary result.
The principles provide a guide to deciding whether an application for guardianship is necessary. For example, welfare guardianship may not be the least restrictive intervention necessary to benefit someone who is unable to consent to community care services. Where certain conditions are met the local authority can use its powers under the Social Work (Scotland) Act 1968 to provide services. 3
4.43 Bearing this in mind, the need for guardianship 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 person would want something to be done about his/her situation, if capable. A brief guide to communicating with the adult is provided in Annex 1. You should also consult certain other people on whether they think that guardianship is necessary to benefit the adult and whether they can think of any less restrictive option.
- In some cases the adult's wishes and feelings may not be a very good guide to what is needed.
For example, an adult with severe mental illness may be suicidal; or wish to spend all his or her money; or an adult with a learning disability may be over-anxious to please a particular relative or friend, or not understand the value of his or her own possessions. You will have to explain in applying for guardianship in such a case, why you have decided that the adult's own wishes and feelings are not a good guide to what should happen.
- In some situations, the adult may accept the need for guardianship to protect him or herself against poor judgement which is directly caused by incapacity.
- Has the adult sufficient capacity to take decisions and action him or herself to meet the needs, e.g. appoint an attorney to take the necessary decisions? An adult may be capable of understanding his or her limitations and the significance of appointing an attorney even if he or she is not capable of actually acting or taking decisions. This could be a suitable course in the case of someone with a relapsing mental illness, as a less restrictive alternative to guardianship.
- If the adult lacks capacity to appoint an attorney, 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.
- 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?
For example, your relative may have appointed a financial attorney at a time when he or she had modest means. The relative's estate may have increased, for example by inheriting a house, and you have doubts about the willingness or competence of the financial attorney to take on responsibility for selling the house and investing the proceeds for your relative's benefit.
- Could the necessary powers be exercised by you or someone else under an intervention order (see part 2 of this code). This would normally be less intrusive than guardianship. Moreover an intervention order would offer the possibility of trying out less restrictive measures before more restrictive measures are deemed necessary. Guardianship is likely to be more suitable where there are several issues to be dealt with and where there is likely to be a need for continuing intervention in the adult's affairs and flexibility is required to respond to new situations without having to go back repeatedly to court.
- Do you have the necessary knowledge and skills to exercise the powers if you are authorised to do so? Even if you do, might it be in the best interests of the relationship between you and the adult for someone else to be guardian?
NATURE OF THE GUARDIANSHIP ORDER TO BE SOUGHT
4.44 It will be important in seeking guardianship 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.
For example, if guardianship is sought to move an adult into residential care, it should be demonstrated that other options, such as the adult's continuing to live in his or her own home with an enhanced package of support, have been considered and rejected.
Some powers which you may wish to seek ( e.g. to move the adult into a residential a care home or attendance at a day centre) may not be able to be implemented unless the adult has been assessed by the local social work department as needing the service to which the power relates. It may be best to discuss this beforehand with the officer from the social work department providing the report to accompany the application or the adult's social worker or care manager if he/she has one.
- Account must be taken of the adult's past and present wishes and feelings. These must be ascertained in whatever way is appropriate and practicable in relation to the particular adult. See Appendix 1.
- The applicant must be able to report 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. The adult will be able to challenge this aspect of the application, as will others with an interest.
- 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 Appendix 1. Where the adult cannot communicate present wishes and feelings despite every effort being made a spectrum of views should be obtained. Undue reliance must not be placed on information from one or a restricted number of relatives and associates.
- Account must be taken of the views of the nearest relative and primary carer, the adult's named person and of any attorney and anyone else the sheriff has directed should be consulted, including any views expressed on behalf of the adult by a person providing an independent advocacy service, 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.
ANTICIPATE THE POWERS THAT YOU ARE LIKELY TO NEED
4.45 You should try to foresee all the property and financial affairs which may need to be managed for the particular adult. These could include in particular power to:
- have vested in you any right of the adult to deal with, convey or manage heritable property (land or buildings);
- open, close and operate any account containing the adult's funds;
- claim and receive on behalf of the adult all pensions, benefits, allowances, services, financial contributions, repayments, rebates and the like to which the adult may be entitled; and vary or appeal arrangements;
- deal with the adult's income tax;
- pay all proper debts and liabilities due by the adult;
- instruct or vary the investment of the adult's estate;
- make any necessary decisions in relation to any business belonging to the adult;
- borrow money on behalf of the adult;
- pursue, defend or compromise any legal action or other claim on behalf of the adult involving a claim for property or money;
- obtain and pay for any goods or services which are of benefit to the adult;
- have access to relevant confidential information to which the adult would have been entitled to have access.
Where the adult's affairs are very simple or the estate modest
4.46 Where the adult's affairs are very simple or the estate modest, you may feel that it would be better not to ask for an elaborate list of powers but only those which are immediately necessary to improve the management of the estate. In these circumstances guardianship may not be the least intervention necessary to benefit the adult and you should consider whether an application for a financial intervention order or application to the OPG to Access Funds might not be more appropriate.
Special provisions where guardianship relates to heritable property
4.47 Section 61 makes special provision in relation to a guardianship order which vests in the guardian any right of the adult to deal with heritable property, e.g. acquiring or disposing of a house, or renouncing or assigning the tenancy of a shop held by the adult on a long lease. In such a case, the application will have to specify each property affected by the order in such a way that it can be identified on the Register of Sasines or Land Register.
Note: that these are only examples of powers that might be included. In any particular case, some powers may be inappropriate and others may need to be added.
Safeguarding the adult's assets
4.48 Under section 58(6), the sheriff may require a financial guardian to find caution. This 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).
Direction waiving requirement for management plan
4.49 You may also consider that the management and accounting requirements of the Act are unduly complex and onerous, given the size of estate and the simplicity of the affairs involved (see Part 5 for guidance on the normal requirements). You may decide at this stage to ask the sheriff to make a direction waiving the requirement for a management plan to be submitted to the Public Guardian. Once you have been appointed the Public Guardian has discretion to waive certain other requirements, for example, to dispense with the need for an inventory of estate or accept something else as an alternative. This might be where the estate is small or if the guardian has limited powers. In most cases however, an inventory will be needed as it provides a clear picture of the estate under the guardian's control at the date appointed.
4.50 You should assess the immediate need for specific welfare decisions which need to be taken on behalf of the adult and consider what decisions may be needed in the foreseeable future that the adult lacks the capacity to make for him/herself. These could include in particular power to:
- decide where the adult should live;
- apply for a community care assessment for the adult;
- consent to community care services;
- apply to receive and manage self-directed support (previously known as direct payments) from the local authority social work department; 4
- have access to personal information concerning the adult, held by any body or organisation, such as medical records or personal files held by social work services;
- consent or withhold consent to medical treatment for the adult, where not specifically disallowed by the Act; 5
- arrange for the adult to undertake work, education or training;
- take the adult on holiday or authorise someone else to do so;
- consent to the adult's participation in research, in accordance with safeguards set out in Part 5 of the Act;
- provide access to the adult for medical treatment, dentistry etc. where this will benefit him or her;
- make decisions on the adult's dress, diet and personal appearance;
- make decisions on the social and cultural activities that the adult may pursue;
- pursue, defend or compromise any legal action on behalf of the adult involving his or her personal welfare;
- decide with whom the adult should or should not consort.
4.51 You may not need to exercise all the powers that you are given, for example to support a legal action on behalf of the adult. Either the occasion may not arise to exercise particular powers, or different options for the provision of services may be forthcoming. You may find that when you apply the principles, the exercise of your powers would not be justified in a particular situation because the adult is able to act for themselves. This will be particularly relevant where the person has a chronic mental illness with fluctuating capacity.
DEALING WITH CONFLICTS OF INTEREST
4.52 You should be aware of any possible conflict of interest and be ready to discuss these with the Mental Health Officer ( MHO), social work officer or anyone else preparing a report on your application. Conflicts of interest may arise because of the close relationships that are likely to exist between the adult and those seeking to intervene in his/her affairs. They may arise between yourself and the adult or yourself and other relatives and associates of the adult. The key to dealing with possible conflicts is to apply the principles. It may also be helpful to seek an independent view on the appropriate way forward. If there is likely to be an ongoing conflict you could consider whether an application to the sheriff for an order or directions under section 3 of the Act would resolve matters.
4.53 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 fiduciary duty to the adult.
For example you may stand to inherit money or property under the adult's will but financial guardianship would involve incurring expenditure from the adult's estate to benefit the adult, which would have the additional effect of eroding your inheritance.
4.54 It is quite reasonable and proper for a guardian sometimes to take action which would benefit both him or herself and the adult. A financial guardian living with the adult could for example, spend some of the adult's resources on home improvements to benefit both of them.
4.55 There are a number of ways of examining this issue. Firstly, the author of the report will want to consider whether the intervention will in fact benefit the adult, and whether the benefit could be achieved in any other less restrictive way. This may not be straightforward because it may be a case of balancing different benefits.
For example, the adult's welfare could be undermined where a carer has difficulty with stairs but the adult is able bodied and could climb stairs and get into dangerous situations out of reach of the carer. A move to more suitable accommodation would benefit the carer, but would also allow the adult to continue to be cared for at home.
This balancing of different benefits will be particularly important if the adult is resisting guardianship or the carer him or herself has concerns about the level of accountability involved.
4.56 You can expect, therefore, that the author of the report on your application will consult the adult to ascertain, if possible, whether the intervention is consistent with his or her wishes and feelings and assess whether there is any question of your having exerted undue influence on the adult. 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 associates of the adult.
4.57 If you are not sure how to deal with conflict of interest, there are a number of options you could pursue. These would include:
- involving an independent advocacy project to support the adult in expressing his/her views and wishes 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 you and the local authority. (Request information about entitlement to legal aid to meet legal fee);
- inviting 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 to place limits on the powers you are seeking, which cannot be exceeded without some further supervisory or judicial procedure.
4.58 It may be that after consideration of all these factors the MHO or social work officer will write an adverse report on your application. It would not be good practice for the officer 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.