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4 POWERS OF ATTORNEY, INTERVENTION AND
GUARDIANSHIP ORDERS
Powers of Attorney
Certification of incapacity
4.1 Under sections 15 and 16 of the Act, individuals can
make provision for someone of their choosing to manage
their affairs or look after their welfare, if they become
unable to do so themselves. It is clear that this is one of
the early successes of the Act with over 47,000 powers of
attorney already registered with the Public Guardian.
Since, in general, this part of the Act is working well, we
will not be proposing any major changes.
4.2 A power of attorney to manage financial affairs can
be drafted so that it continues or comes into effect after
the person granting it loses the capacity to manage his or
her affairs. A welfare power of attorney cannot come into
effect until the person granting it loses capacity. Both
continuing and welfare powers of attorney must be
registered with the Office of the Public Guardian before
they can come into effect. They can be registered once they
have been signed, and before they are required, unless
there is a clause in the document stating that it cannot be
registered until a specified event has occurred.
4.3 There is a high rate of rejection of powers of
attorney by the
OPG when sent for registration because
of errors in 25% of the documents. We intend, therefore, to
retain the possibility of registering powers of attorney as
soon as they are signed, except where the deed states
otherwise, so that granters can be sure that their powers
of attorney are valid and will operate as intended should
they lose capacity. If a power of attorney is not
registered until capacity has been lost, and it contains
mistakes, there is nothing which can be done to rectify
it.
4.4 Currently, in cases where the power of attorney is
to become operational on the granter's incapacity,
i.e. all welfare powers of attorney and
financial powers where this is specified, it is not
necessary to have a medical certificate of incapacity to
define the time from which the attorney has authority,
unless the document specifically states that this should
happen. Where the need for a medical certificate, or other
evidence, is not stipulated, the attorney can decide when
the granter has lost the ability to make certain decisions.
A concern has been raised about the ability of attorneys to
make an appropriate assessment of incapacity. It has been
suggested that for all powers of attorney which take effect
on the granter's incapacity it would be desirable for
attorneys to be required to obtain a medical certificate of
the granter's incapacity before operating their powers.
4.5 We take the view that powers of attorney are written
by individuals who have capacity and who, therefore, should
be free to decide how and when they want their powers of
attorney to come into effect. We are not minded to make it
a requirement that incapacity must be evidenced by a
certificate of incapacity. `
4.6 However, we consider that for powers of attorney
which are intended to come into effect on incapacity, how
and when capacity is deemed to be lost is something the
granter should, at the very least, have considered. This
could be achieved by a check in the registration process to
ensure that thought has been given to whether the decision
about capacity should be left to the judgement of the
attorney or whether the attorney's authority should be
dependent on a medical certificate of incapacity. This is
less prescriptive than requiring a certificate of
incapacity in every case but would ensure that individuals
considered how and by whom their incapacity should be
determined, whilst still allowing freedom of choice.
We are not minded to introduce a requirement
for certificates of incapacity in every case where a
power of attorney is to become effective on incapacity,
but propose to include a check in the registration
process to ensure that the granter has considered how
and by whom incapacity is to be determined.
Your views
10 Do you support the proposal to include a check in the
registration process for powers of attorney to ensure that
the granter has considered how and by whom incapacity is to
be determined?
Certificates to accompany powers of
attorneys
4.7 In order to grant a power of attorney an individual
must be capable of understanding what he/she is doing and
what the impact of granting the powers will be. All powers
of attorney must be supported by a certificate signed by a
doctor, solicitor or advocate stating that the granter
understands the implications of what he/she is doing. A
power of attorney cannot be registered without a supporting
certificate. The purpose of the certificate is to protect
the individual, particularly when he/she may be vulnerable
or susceptible to pressures from others.
4.8 Under sections 15(3) and 16(3) two separate
supporting certificates by an approved person are required
for a power of attorney which contains both continuing and
welfare powers. This is a frequent cause of mistakes with
only one certificate being provided when the power of
attorney is sent for registration. If only one supporting
certificate is provided, the power of attorney cannot be
registered by the
OPG. Stakeholders have asked for a
single certificate to be sufficient in these circumstances.
We see no reason, in the light of experience, to maintain a
requirement for two certificates and propose to provide
that a single certificate should be permitted in these
circumstances.
We propose to amend the Act to provide that
only one supporting certificate by an approved person
is required when a power of attorney contains both
continuing and welfare powers.
Your views
11 Do you support the proposal to amend the Act to
provide that only one supporting certificate by an approved
person is required when a power of attorney contains both
continuing financial and welfare powers?
Intervention Orders and Guardianship
4.9 Under Part 6 of the Act, an application can be made
to the sheriff for a
guardianship or
intervention order. Intervention orders are
usually concerned with a one-off or time-limited action or
decision to be made on behalf of an adult who is not
capable of taking the action or making the decision.
Intervention orders can relate to the adult's financial
affairs, property and/or personal welfare. Guardianship
orders are intended for longer-term help or continuous
management. Again guardianship orders can cover financial,
property and/or welfare matters. The Act allows for both
sole and joint guardians to be appointed.
4.10 Guardianship and intervention orders are granted by
a sheriff following a court hearing and must be registered
with the
OPG.
4.11 Applications for guardianship or intervention
orders have to be accompanied by two medical reports of
incapacity relating to the specific decision-making powers
requested. Applications for orders covering financial or
property matters must also include a report from someone
with sufficient knowledge to establish the appropriateness
of the order and of the person nominated to act.
Applications for orders covering welfare matters must be
accompanied by a Mental Health Officer's (
MHO's) report. These reports are
concerned with the appropriateness of the order being
sought and the suitability of the person named to act as
guardian or intervener. All reports need to be completed
within 30 days prior to the application being lodged with
the court. The application sets out the powers sought.
4.12 Once granted by the court guardianship orders can
be for three years, or for any other period, including
indefinitely, as determined by the sheriff. In cases of
financial guardianship the sheriff can require the
guardians to find caution (see below).
4.13 Orders under Part 6 are not designed to deal with
emergency situations. The provisions are intended to enable
the management of an adult's financial and welfare matters
by another when the adult is no longer capable of managing
them him or herself. There are provisions in the Mental
Health (Care and Treatment) Act 2003 which will enable an
adult with a mental disorder to be removed to a place of
safety where he/she is likely to suffer significant harm in
a range of circumstances. There is also a current
consultation on further protections for vulnerable adults
10.
4.14 We are aware that there are a number of factors
preventing this part of the Act from reaching its full
potential for users and the following proposals are
designed to streamline and simplify the process.
Caution
4.15 Caution is insurance to safeguard the estate of the
adult with incapacity from any loss due to the actions of
someone acting on his or her behalf.
4.16 Currently, where a sheriff grants an intervention
order, or appoints a guardian or a substitute guardian, in
relation to financial affairs, he/she must ask the person
appointed to find caution except where the person appointed
is unable to find caution but is nonetheless suitable to be
authorised under the order. We are aware that there are
difficulties both in finding and funding caution. The
problems include: very few companies offer caution; caution
is applied to blocks of value of estate and has a fairly
high starting threshold which places a heavy burden on
small estates where the value falls significantly below the
threshold; and the processing of an application can be
quite lengthy. We are aware that caution is rarely
dispensed with and that the delays encountered when seeking
caution cause frustration and prevent intervention orders
being implemented and guardianships from commencing - which
may clearly not be beneficial to the adult.
4.17 Sheriffs already have a broad discretion under
section 3 of the Act. However, we propose to include a
specific provision in the sections of the Act mentioned
above to allow sheriffs the discretion to dispense with
caution where they consider this to be appropriate in the
circumstances.
4.18 Currently the
PG has no power to vary caution to
reflect changes in the value of an estate over the period
of the order. Where estates have been significantly
diminished or increased since an order was granted, the
level of caution may have become inappropriate. We propose
giving powers to the
PG to vary the amount of caution set -
where the sheriff has set this as a percentage of the
estate - to reflect changes over a period in the estate's
value.
We are proposing to give sheriffs discretion to
dispense with caution where they consider this to be
appropriate in the circumstances. We are also proposing
to allow the
PG to vary the amount of caution set
to reflect changes in the value of an estate.
Your views
12a Do you agree that it would be beneficial to make
specific provision for sheriffs to dispense with caution if
they consider it appropriate in the circumstances?
12b Do you agree that the
PG should be granted powers to vary
caution?
Time limit for reports for applications for
guardianship and intervention orders
4.19 Currently, there is a 30 day limit within which
reports supporting intervention and guardianship
applications must be lodged. We are aware that it can be
difficult to obtain and lodge all of the reports within the
time limit. We know that the general discretion which
sheriffs have under section 3 has been used to extend the
period for lodging the reports. It has been suggested that
where an adult's condition is stable and long term, or
deteriorating and long term, that sheriffs should have
express discretion to lengthen the period for lodging the
reports to possibly up to 60 days in these circumstances
because there would no benefit to the adult in requiring
further reports.
We propose to make specific provision to allow
sheriffs discretion to extend the period for lodging
reports to a maximum of 60 days in cases where an
adult's condition is stable and long-term, or
deteriorating and long term.
Medical reports where the adult is outside
Scotland
4.20 When the cause of incapacity is mental disorder, it
is necessary for one of the medical reports which must be
lodged with the guardianship or intervention order
application to be signed by a medical practitioner approved
for the purposes of section 22 of the Mental Health (Care
and Treatment) Act 2003 (which comes into force in October
2005). We are aware that there can be difficulties and
significant additional costs in obtaining a report from the
approved medical practitioner in cases where the adult
lives outside Scotland.
4.21 A possible solution would be for the examination of
the adult to be carried out by an appropriately qualified
medical practitioner, recognised by the country in which
he/she works, who has the knowledge and ability to assess
the adult. To ensure that the requirements of the 2000 Act
are met, we propose that the examining medical practitioner
should then discuss that examination with a medical
practitioner approved under section 22 of the 2003 Act or
with a medical commissioner or medical officer of the
Mental Welfare Commission for Scotland before providing a
report on the adult's capacity in relation to the measures
sought. This would enable guidance on the requirements of
Scottish law to be provided, and at the same time ensure an
appropriate and timely assessment of capacity without the
need to bring the adult to Scotland, or for a Scottish
doctor to visit the adult.
Interim Guardianships
4.22 Under section 57(5) and (6), a sheriff can appoint
an interim guardian for a period of up to three months. We
understand that interim orders are granted in 25-30% of
cases. We also understand that a few of these cases require
a further interim order because of the complexity of the
case which means that the parties have to reapply to the
court. We are not clear that any changes to the current
position are necessary but are seeking views on whether it
would be desirable for sheriffs to have discretion to make
interim orders for a period of more than three months where
this is appropriate in the circumstances of the case.
Your views
15 Should sheriffs be given discretion to make interim
orders for a period of more than three months where this is
appropriate in the circumstances of the case?
Recall
4.23 Guardianships can be recalled if the grounds of
appointment are no longer fulfilled or if the adult's
welfare is adequately protected in some other way. The
sheriff and the
PG can recall financial guardianships
and the sheriff, local authority and the
MWC can recall the powers of a welfare
guardian. Currently, a local authority cannot recall a
welfare guardian's powers where the Chief Social Work
Officer is the welfare guardian. It has been suggested that
local authorities should be able to recall their own
guardianships to ensure that they are able to act in
accordance with the principle of least restriction and that
there should be no delay in recalling a guardianship when
it is no longer needed.
We agree with this and propose to amend the Act
accordingly.
4.24 In addition, stakeholders have suggested that there
is a need to simplify recall procedures. We will consider
the procedures with the four bodies which can recall
guardianships and, if appropriate, will bring forward
adjustments. We would be interested to hear of areas of
specific operational difficulty in the recall
procedures.
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