CHAPTER 7 RENEWAL, REPLACEMENT, TERMINATION AND TRANSFER OF GUARDIANSHIP
RENEWAL OF GUARDIANSHIP
7.1 The default period of guardianship is 3 years although the sheriff has discretion to extend this period (including an indefinite period) or reduce it. The Act provides for renewals of guardianship when the approved period is coming to an end.
7.2 Section 60 of the Act provides that at any time before the end of a period in respect of which a guardianship order has been made or renewed, an application may be made to the sheriff under this section by the guardian for the renewal of such order, and where such an application is made, the order shall continue to have effect until the application is determined.
7.3 A review of guardianship should take place before the expiry of the existing order as reports similar to those which were provided at the first application have to be prepared for the renewal application. Reports have to be based on the current position and time will be required for an up to date assessment. The Public Guardian will issue a reminder to all guardians three months before the expiry of the order that their appointments are approaching the end. At the same time as you receive such a letter, the local authority will be similarly informed.
7.4 The 3 months' notice given by the Public Guardian is a failsafe. Welfare guardians should be starting to think about renewal along with their local authority supervisors as part of the agenda for supervision during the last 6 months of the order. Financial guardians should consider renewal when they submit their accounts for the last accounting period of their current term.
7.5 You should therefore keep a note of the renewal date so that you can begin thinking about the renewal and whether you want to continue to act and if so, with the same powers and conditions. For example, you may decide that a joint guardian should be appointed to share the duties with you or that you want to step down and let someone else take over. A substitute guardian who was appointed at the same time as you would have to be reassessed for suitability just as you will yourself be if applying for renewal. The Act provides that the local authority shall apply for renewal of a guardianship order if this appears to be necessary and no-one else is doing so.
7.6 A renewal application in the form of a Minute must be accompanied by a medial report in prescribed form, of an examination and assessment carried out with regard to the adult's capacity not more than 30 days prior to the lodging of the renewal application form. If the incapacity is by reason of mental disorder, the report should come from a medical practitioner with experience in that field.
7.7 For renewals of welfare guardianships, the application would also be accompanied by a report provided by a mental health officer, or in cases where the lack of capacity is because of inability to communicate, by the CSWO. The report will give an opinion as to the appropriateness of continuing the guardianship, including the suitability of the guardian.
7.8 For renewals of financial appointments, the application would be accompanied by a report by the Public Guardian giving an opinion of the conduct of the guardianship to date and the continuing suitability of the guardian.
7.9 It will be possible for a sheriff to take a decision without a hearing; but if the sheriff is not satisfied by the information he/she can call for further reports or have a hearing.
7.10 In renewing the order, the sheriff can continue it for a period of 5 years or for such a period as seems suitable including an indefinite period. You can expect to get help and guidance as required when the time for renewal comes round and you can put forward your views on what should happen.
7.11 Legal Aid may be available on the same basis as for applications for guardianship and intervention orders (see paragraph 1.24).
TERMINATION OF GUARDIANSHIP
7.12 Under section 71 of the Act, guardians may be replaced, removed or have their powers recalled.
Replacement or removal of a guardian by the sheriff
7.13 Under section 71 of the Act, the sheriff, on an application made to him or her by an adult subject to guardianship or by any other person claiming an interest in the adult's property, financial affairs or personal welfare, may:
(a) replace a guardian by an individual or office holder nominated in the application if he is satisfied, in relation to an individual that he or she is suitable for appointment;
(b) remove a guardian from office if satisfied:
(i) that there is a substitute guardian who is prepared to act as guardian; or
(ii) in a case where there are joint guardians, that the remaining guardian is or remaining guardians are prepared to continue to act; or
(c) recall a guardianship order or otherwise terminate a guardianship if satisfied:
(i) that the grounds for appointment of a guardian are no longer fulfilled; or
(ii) that the interests of the adult in his property, financial affairs or personal welfare can be satisfactorily safeguarded or promoted otherwise than by guardianship.
7.14 An adult or any other interested party can apply to the sheriff under this section if there is reason to make a change in respect of the guardian either because of life events or concerns about the functioning of the guardian. In most instances a new application will be required, apart from cases where joint guardians or substitute guardians were appointed in any previous applications.
7.15 The Act provides a range of different ways in which a change of guardian might happen and recognises that there will be a variety of circumstances bringing this about.
7.16 Replacement is where a new application nominates another individual (who could be the CSWO) to be appointed. The new guardian has to meet the criteria set out in section 59 of the Act (see part 4 of this code). Replacement may be appropriate in situations where, for example, the guardian dies or moves to another part of the country. It can also be used if the local authority does not think the guardian is carrying out the duties in a satisfactory way or if the MWC or Public Guardian is dissatisfied.
7.17 A guardian may be removed by the sheriff where another guardian exists who is prepared to take over acting or to continue to act. This can only happen where there is either a substitute guardian or a joint guardian. Removing the powers of an existing guardian will usually happen because the guardian is no longer able or failing in the exercise of his or her powers.
7.18 Resignation by a guardian is covered by a procedure set out in section 75 of the Act. To protect the adult from there being an interval of time when no guardian is acting, resignation cannot become effective until the appropriate notifications have been made and the appointment of another guardian is approved by the sheriff. Therefore if you decide to give up as guardian, you should notify the Public Guardian, the local authority and where appropriate the MWC (if you are a welfare guardian) giving as much notice as you can of your intention.
7.19 A joint guardian or a guardian where a substitute has been appointed, may resign with effect from notifying the above bodies provided the remaining joint guardian or substitute guardian is prepared to act.
7.20 In effect a guardian seeking to resign has to ensure that there is someone already approved to take over either by means of a previous application or a new one being submitted to the sheriff.
7.21 As might be expected, the death of the adult ends guardianship. The Act provides for guardians to continue to act until aware of the death, provided any action after death is done in good faith. It is a requirement to notify the Public Guardian of the adult's death. She will inform the local authority and MWC, as necessary.
What if you become unavailable to act?
7.22 If you are temporarily unable to act as guardian, e.g. because of hospitalisation or having to attend to matters abroad, and there is no joint or substitute guardian, you should consider whether there is someone suitable to apply to become an additional guardian. This would take the same length of time as the original application for guardianship. Alternatively, it is possible in terms of section 64(6) that you could leave instructions for safeguarding the adult's property, financial affairs or personal welfare with a solicitor or other agent to cover the period when you are unavailable personally to act. It is also possible that in order to expedite the appointment of an additional guardian, the local authority and medical practitioners providing reports would be prepared to shorten the statutory timescales normally allowed.
7.23 If you are a welfare guardian who will be temporarily unavailable you should discuss the matter with your local authority supervisor. If there is no-one else willing to act, the local authority could apply for interim welfare guardianship for the CSWO while the situation is being sorted out.
7.24 If you become unable to act as financial guardian you should inform the Public Guardian immediately.
7.25 You should also leave instructions with a colleague, relative, or the adult's relatives or carer as to what action to take if you yourself lose capacity owing to an accident or illness, during your term as guardian. No-one else can simply take over a guardian's powers without authority of the court, although the guardian can expressly delegate his functions to another person and this could cover any period during which the guardian was temporarily unavailable to act. In the event of the death of a guardian, his or her personal representatives should inform the Public Guardian.
RECALL OF GUARDIANSHIP
Identifying the need for recall of guardianship
7.26 The desirability of recalling a guardian's powers may be identified through day-to-day contact with the adult, or from regular supervision by the local authority or Public Guardian of a welfare guardian or financial guardian respectively. Alternatively, the need for change may be identified through complaints or investigation about the way that an individual guardian is carrying out his or her functions. You as guardian should be alert to, and should raise in your supervision meetings with the local authority OPG, the possibility that changes may be required, particularly where the adult's incapacity is not likely to be permanent. For example, a younger person with a learning disability may develop an ability to manage his or her own affairs over time.
7.27 The principles within the Act should be applied to the question of recall and care should be taken to ensure that those with an interest are informed of any decision to apply for recall.
7.28 As a matter of good practice, changes that may be required to guardianship should be sought at an early opportunity. However, it will be a matter of balance as to when this should be sought. You as guardian should not, for example, automatically wait until the next regular review to initiate action. It would be good practice to contact your local authority supervisor or the OPG should it become clear that a change is desirable.
Who can recall guardianship?
7.29 Both the sheriff and the Public Guardian have the power to recall financial guardianship. The sheriff, local authority and the MWC (only in cases where incapacity relates to mental disorder) may recall the powers of a welfare guardian. A local authority can recall a welfare guardian's powers where the CSWO is the guardian.
Who can apply for recall?
7.30 Anyone claiming an interest, including the adult, may apply for recall. The Public Guardian, the MWC and local authorities can also all consider recall at their own instance. Details of the process for recall by local authorities are provided in the code of practice for local authorities.
Deciding which body to apply to
7.31 It is likely to be simpler and quicker for the application to be made to the MWC or local authority (for recall of welfare powers) or the Public Guardian (for recall of financial powers) than to the courts. The local authority has a direct supervisory role and is more familiar with the adult and his/her circumstances and as such the application should go to them in the first place. The local authority should consult the MWC.
7.32 This might be appropriate if there are no other factors, such as opposition by those with an interest in the adult's affairs, that might suggest that recall should be considered by the sheriff. Only the sheriff, however, will be able to take an overview of all the adult's affairs and make a less intrusive order. The courts are, in practice, the correct forum to deal with controversial or contested applications. Recall decisions by the Public Guardian, the local authority and the MWC may be appealed to the sheriff.
7.33 Where recall of both financial and welfare powers are sought, separate applications could be made to the Public Guardian to recall financial powers and to the local authority or MWC to recall welfare powers. Alternatively, a single application to the sheriff could be made to recall both financial and welfare power.
MAKING AN APPLICATION FOR RECALL
7.34 An application to the sheriff will be in the form of a document called a minute. Guidance on preparation can be obtained from the Sheriff Clerk. Where non notification to the adult is proposed in relation to recall of welfare guardianship an application must be made to the sheriff, because only the sheriff has the power to dispense with notification in such cases. The Public Guardian has similar powers in relation to recall of financial guardianship.
7.35 The OPG has prepared guidance notes and an application form for applying to the Public Guardian for recall of financial guardianship.
7.36 The forms for applying to the local authority or the MWC for recall of guardianship are prescribed in the Adults with Incapacity (Recall of Guardians' Powers) (Scotland) Regulations 2002 as amended by the Adults with Incapacity (Recall of Guardians' Powers) (Scotland) Amendment Regulations 2008. The forms are available electronically at http://www.scotland.gov.uk/topics/justice/civil/awi.
Grounds for recall
7.37 Details of the grounds on which recall is sought must be given to indicate that either or both of the grounds at section 73(3) of the Act are met, namely that:
- that the grounds for appointment of a guardian are no longer fulfilled; or
- that the interests of the adult in his personal welfare, property or financial affairs can be satisfactorily safeguarded or promoted otherwise than by guardianship.
7.38 If the application for recall is submitted on the grounds that the adult is no longer incapable in relation to the matters concerned, a report to that effect signed by a medical practitioner will be required to accompany the application. The form is prescribed in the Adults with Incapacity (Recall of Guardians' Powers) (Scotland) Regulations 2002 as amended by The Adults with Incapacity (Recall of Guardians' Powers) (Scotland) Amendment Regulations 2008 and is available electronically at http://www.scotland.gov.uk/topics/justice/civil/awi. In cases where an application for recall relates to financial and property matters, the Public Guardian has a set report form to be used by a medical practitioner. This is downloadable from the OPG website ( www.publicguardian-scotland.gov.uk). Where recall relates to welfare matters the MWC has a set report form to be used by a medical practitioner, downloadable from the MWC website: www.mwcscot.org.uk.
7.39 If the grounds for the application for recall are that the adult's interests can be satisfactorily safeguarded or promoted otherwise than by guardianship, the application will need to state the alternative means by which the adult's interests are to be protected. These may be less restrictive measures under the Act or alternatives such as appointeeship under social security regulations.
7.40 The application will need to confirm that consultation has taken account of the views of all those listed at section 1(4) of the Act. This includes in all cases the present and past wishes and feelings of the adult. The views of the nearest relative, primary carer, the adult's named person and any person whom the sheriff has directed to be consulted are required to be taken into account insofar as it is reasonable and practicable to do so. The application should confirm explicitly that this has been done. The application should, further, confirm that the views of any other person appearing to have an interest in the adult's welfare, that are made known, have been taken into account insofar as it is reasonable and practicable to do so.
7.41 You as guardian can be the one to make the application. You may also find that someone else applies. In particular, the adult is entitled to make an application in person whether or not he or she is capable in relation to the matters covered by the guardian's powers. Where the local authority, MWC or Public Guardian receives an application for recall, or intends to recall a guardian's powers at their own instigation, they have to notify the adult, his or her nearest relative, the primary carer, his or her named person and any person they consider has an interest in the recall. All those notified have 21 days to object to the proposed recall. Objections must be made in writing. If someone else makes the application, you will therefore receive notification of it and will need to decide whether you agree with it or want to oppose it and ask for your powers to be maintained or modified in some way.
7.42 If you object to recall, you will have to make this known to the local authority, MWC or Public Guardian.
7.43 If the local authority, MWC or Public Guardian proposes to reject a recall application, an intimation of this must be sent to the applicant and the adult, who may object within 21 days, and who have the right to have their objections heard before a final decision is made.
7.44 The local authority, MWC or Public Guardian may consider the objections and take a decision themselves, but must be able to give reasons for any such decision. The local authority, MWC or Public Guardian may, as an alternative to agreeing or refusing a recall, decide that the decision should be made instead by the sheriff, whose decision is final.
7.45 Remit to the sheriff is likely to be appropriate where differing views about the desirability of recall emerge during the local authority's consideration of the matter and the local authority considers that evidence should be heard before a decision is taken. A court setting would allow opposing views to be heard and the parties to arrange for legal representation if they wished to do so. This would give you, as guardian, a chance to explain your objections. Therefore, if someone has applied for recall, but you as guardian consider that the principles still point to guardianship, you should ask the body considering recall (if not the sheriff) to remit the case to the sheriff so that your objections can be heard in court. You may wish to be legally represented in such circumstances.
APPEAL AGAINST RECALL DECISIONS
7.46 An appeal against a decision to recall a guardian's powers may be made to the sheriff, as may an appeal about a decision by the local authority, MWC or Public Guardian to remit or not to remit the matter to the sheriff for the court to decide.
TRANSFER TO A DIFFERENT LOCAL AUTHORITY AREA (IN CASES WHERE THE LOCAL AUTHORITY IS THE WELFARE GUARDIAN)
7.47 Under section 76 of the Act, where an adult under local authority guardianship changes habitual residence, the chief social work officer must inform the chief social work officer of the receiving authority. The receiving authority then has 7 days to notify the Public Guardian, and in appropriate cases the MWC, of the transfer. Within a further 7 days the CSWO of the receiving authority must notify the adult (unless the sheriff has directed that intimation should not be given to the adult), the Public Guardian, and where appropriate the MWC of the name of the officer responsible for carrying out the functions and duties of guardian.