Annex 1 Statutory bodies with responsibilities under the Act
The Office of the Public Guardian
The Office of the Public Guardian ( OPG) registers both welfare and financial powers of attorney, intervention orders and guardianship orders, and has extensive functions and powers in relation to financial provisions and appointments. The OPG intends to develop an on-line public register in the foreseeable future, which can be accessed at www.publicguardian-scotland.gov.uk
The Mental Welfare Commission for Scotland
The Mental Welfare Commission for Scotland ( MWC) retains protective functions for adults whose incapacity stems from mental disorder. The MWC has a special role in relation to Part 5 of the Act. It is given the duty to establish and maintain a list of healthcare professionals whom it can nominate to give an additional opinion in the case of disputes between the healthcare professional and a proxy about treatment under Part 5 (see part 3 of this Code). It also has various powers and responsibilities in relation to welfare matters and appointments under the Act.
Local authorities have a wide range of functions under the Act. As adults coming within the scope of Part 5 will often be in the community, or returning to the community, it is important for practitioners to be aware of the functions of local authorities which may impinge on medical treatment. Duties of local authorities include the following:
To investigate circumstances where personal welfare of adult at risk
- To investigate any circumstances made known to them in which the personal welfare of an adult seems to be at risk.
To provide information and advice to those exercising welfare powers
- To provide a guardian, welfare attorney or person authorised under an intervention order, when requested to do so, with information and advice in connection with the performance of his or her functions in relation to personal welfare under the Act.
To investigate complaints in relation to those exercising welfare powers
- To receive and investigate any complaints about the exercise of functions relating to the personal welfare of an adult made in relation to welfare attorneys, guardians or persons authorised under intervention orders.
To consult Public Guardian and MWC
- To consult the Public Guardian and the MWC on cases or matters relating to the exercise of functions under the Act in which there is, or appears to be, a common interest.
To supervise attorneys and guardians
- To supervise a welfare attorney or a person authorised under an intervention order where ordered to do so by the sheriff; and to supervise a guardian appointed with functions relating to the personal welfare of an adult in the exercise of those functions.
Intervention or guardianship orders
- Where it appears to the local authority that an intervention order is necessary for the protection of an adult, and that no application has been made or is likely to be made for such an order, the local authority is obliged to apply for an intervention order.
- Where it appears to a local authority that:
- an adult is incapable in relation to decisions about, or of acting to safeguard or promote his interests in, his or her property or financial affairs and is likely to continue to be so incapable; and
- no other means provided by the Act would be sufficient to enable these interests to be safeguarded or promoted, and
- no application has been made or is likely to be made for a guardianship order; and
- a guardianship order is necessary for the protection of the property or financial affairs of the adult, or of the adult;
then the local authority must apply for a guardianship order.
To provide reports to the sheriff relevant to applications for intervention orders or guardianship orders relating to personal welfare
- The local authority must make a report to the court in relation to applications for intervention orders or guardianship orders with welfare powers. Where the adult's incapacity results from mental disorder, the report must be made by a Mental Health Officer ( MHO). But where the adult's personal welfare is in jeopardy only because of the inability of the adult to communicate, this report must be made by the Chief Social Work Officer.
To act as welfare guardian where necessary and no-one else is applying to do so
- Where the guardianship order is to relate only to the personal welfare of the adult, the Chief Social Work Officer of the local authority may be appointed as guardian.