Chapter 4 What powers should I apply for?
First, think about the powers you may need in relation to the person's circumstances, and the type of order that will be most appropriate to help them. This may already be very clear from your knowledge of the person
and/or from a formal assessment of the person's needs by health and social workers. However, if you are unsure, you may wish to seek advice (see Dealing with conflicts of interest). A number of carers have found that applying the principles of the Act have helped to put them on the right track. Your application will need to show that you have taken account of the principles and only applied for the powers needed.
- The type of order sought should benefit the adult and there should be no other reasonable way of achieving that benefit for them. In the application you must be able to show that alternatives have been considered and give reasons for rejecting them.
- The type of order sought should be the least restrictive option in relation to the freedom of the adult, and in relation to its purpose.
For example: if guardianship is sought to move an adult into residential care, you should be able to show that other options have been considered and why they have been rejected, i.e. the risks of keeping the person at home are too great, even with more support.
- Account must be taken of the adult's past and present wishes and feelings. It's important to help the person to express their views as far as possible. As their carer you will be familiar with the person's wishes and feelings and the extent of their ability to respond. If the person has lost capacity to consent, for example, due to a head injury, dementia or a stroke and its hard to get their views, you may wish to check with others who knew the person when they were well or seek expert advice on how best to aid communication.
In the application you will need to say what steps you have taken to find out (as far as possible) what the person's past and present wishes and feelings are about the decisions you are needing to make for them. If the adult disagrees with your proposals (whether or not they understand) they have a right to challenge any aspect of the application, as will others with an interest in the person's welfare.
- Account must be taken of the views of others concerned with the welfare of the person, in so far as it is reasonable and practicable to do so. This includes the adult's nearest relative, named person and primary carer; any attorney; anyone else the sheriff has directed should be consulted; and any other person having an interest in the adult.
You may not need to exercise the powers that you want all of the time, for example, where the capacity of the adult fluctuates, or where there is a progressive improvement and the adult is able to take over making certain decisions for him/herself. The important point is to foresee the powers that may be required to meet the adult's needs but without taking more control over the life of the person than you need to.
Anticipate the powers that you are likely to need
First, consider carefully whether you need welfare powers or financial powers (including property) or both types. The following section focuses on guardianship as the majority of adults for whom an order is appropriate need someone to act and make certain decisions for them on a long-term basis.
* Please note that the following lists provide examples of specific powers that might be included. In any particular case, some powers may be inappropriate and others may need to be added.
Financial guardianship powers
You should consider what current and foreseeable property and financial affairs may need to be managed for the adult. These could include powers to:
- open, close and operate any account containing the adult's funds;
- obtain and pay for any goods or services which are of benefit to the adult;
- 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;
- deal with the adult's income tax;
- pay all 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;
- act in the interests of the adult in any legal case involving a claim for their property or money;
- have access to relevant confidential information to which the adult would have been entitled to have access;
- have vested in you any right of the adult to deal with, convey or manage heritable property (land or buildings);
- make gifts to specific people of a specific value, consistent with the adults past and present wishes;
- have powers over property and financial affairs and shall, subject to certain restrictions, be entitled to use the capital and income of the adult's estate to purchase assets, services or accommodation to improve the quality of the person's life.
You should consider the current and foreseeable welfare decisions which may need to be taken on behalf of the person you care for. These could include power to:
- decide where the person should live;
- have access to personal information concerning the person, held by any body or organisation, such as medical records or personal files held by social work services;
- consent to medical treatment, dentistry, etc. (except where specifically disallowed by AWI);
- consent to the adult's participation in research, in accordance with safeguards set out in Part 5 of the Act;
- take any legal action on behalf of the adult involving his or her personal welfare;
- make decisions on the social, leisure and cultural activities for the adult;
- arrange for the adult to undertake work, education or training;
- take the adult on holiday or authorise someone else to do so.
It would be helpful to specify in the application the period of time you might need these powers and the reasons why. For example, parents applying for guardianship for a young person with profound and multiple learning disabilities or carers of someone with advanced dementia - where the condition is not going to change - could request the powers to be enduring throughout the person's life-time. The carer of an adult with a mental health problem may request powers for a shorter period than the three-year norm. However, the period for the appointment is at the discretion of the sheriff.
Welfare guardians with medical decision-making powers
If you wish to have power to make medical and other health care decisions which the adult is unable to make for themselves, then you must specify this in your application and let the adult's GP and consultant (if there is one) know about this. (Doctors are authorised to give emergency treatment in life-threatening situations without consent from the guardian.)
Making the right application!
- If you include welfare matters in an application that is only for financial powers or vice-versa, the sheriff will reject it.
- 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 an intervention order is all you needed to sell a house, but because the proceeds of the sale must be used to benefit the adult on a continuing basis, a guardianship order would be necessary to manage the funds. This would mean starting the whole process again with a new application, requiring the same reports as before, with all the stress to yourself, the person and inconvenience to others involved.
- However, if you apply for guardianship, and the sheriff decides that an intervention order will be adequate, he/she is able to grant the intervention order without your having to make a new application.
- It is advisable to be specific about the powers you request as this will remove any uncertainty about what is really needed. For example, it will help to counter any doubts by banks or other bodies about what you have authority to do.
Who to contact for further advice
On making the application
If you think you need to apply for an order with welfare powers it is advisable to consult the social work department in the area where the adult lives. This can be helpful because the local authority:
- has a duty to assess need and arrange services under the Social Work (Scotland) Act 1968. Once an assessment or review has been carried out, the local authority might advise, in certain circumstances, that an order under AWI is not necessary to meet the needs of the person you care for;
- will be required to prepare a report on the appropriateness of the application and suitability of yourself as applicant for an order relating to personal welfare, and the more notice they have the better.
You could also seek advice from the Office of the Public Guardian (Scotland) (on financial matters), Mental Welfare Commission (on welfare matters), the Citizens Advice Bureau or other specialist voluntary organisations, or solicitor (see Appendix 5).
If you think that making the application may give rise to a conflict of interest it is best to seek independent advice. For example:
- there may be strong disagreements with other family members, or with health and social care professionals, or with the adult about the best way to meet the adult's needs;
- you might want to apply for financial guardianship powers but at the same time stand to inherit property or money under the adult's will. It is quite reasonable and proper for the guardian to sometimes take action which would benefit both him or herself and the adult (e.g. a home improvement).
If you are not sure how to deal with conflicts of interest or who to contact there are a number of options you can follow, these would include:
- consulting the Office of the Public Guardian (Scotland) where money or property matters are concerned;
- consulting the Mental Welfare Commission on welfare matters if the incapacity of the adult is caused by mental disorder;
- consulting the local authority mental health officer or social work officer, or the person's social worker if there is one;
- discussing the issues with the mental health officer or social work officer who will be preparing the report on your application. They will need to comment on any possible conflict of interest;
- consulting an independent advocacy service - some services have advocates to support carers and some have advocates to support the adult (this free service is available in some areas, it does not constitute legal representation);
- engaging an independent solicitor to represent the interests of the adult (see Using a solicitor);
- asking the sheriff, at the time of making the application, to make special orders to help manage any potential ongoing conflicts.
Email: Alison Mason