|
|
|
|
Introduction
7.1 As we set out earlier, the present law on guardianship is outdated, fragmented and requires reform. We will introduce a new flexible system of welfare and financial guardianship based on the principles set out in chapter 2 on general matters. This will replace Mental Health Act guardianship, tutors and curators bonis.
Policy objectives
7.2 A guardian is a person appointed with powers to manage the affairs of an adult with incapacity over an extended period of time. Guardianship orders will be granted by the sheriff court, which must be satisfied that the adult's incapacity is likely to continue for a period of time and it is the only way to deal satisfactorily with the adult's affairs.
7.3 There will be a single but flexible form of guardian capable of exercising any combination of welfare powers and financial powers. We will also introduce a new type of one-off "intervention orders", based on the principle of minimum necessary intervention. These orders will be made by the sheriff court and will be used to deal with specific matters in the welfare or financial field that do not require the appointment of a guardian.
7.4 We expect intervention orders to be sufficient to deal with many specific problems, without imposing continuing management on the adult with incapacity through the appointment of a guardian. More than one intervention order may be granted at any one time. Intervention orders will be used in a wide variety of situations, such as selling property or directing someone to sign a document. Interim orders will be possible to deal with emergency situations, pending the determination of the application for the full order.
7.5 The local authority will be under a duty to apply for an intervention order where it appears necessary to protect either the financial interests or welfare of the adult with incapacity and no application has been made by anyone else. Any person with an interest, including the adult with incapacity, will be able to make an application to the sheriff court. The Public Guardian will keep a public register of all orders granted by the court.
7.6 Anyone with an interest in the welfare, property or financial affairs of the adult will be able to apply for a guardianship order. As with intervention orders the local authority will be obliged to apply for a welfare guardian to be appointed if no one else is doing so.
7.7 Applications for guardianship orders and intervention orders will be accompanied by two medical reports confirming the adult's incapacity. Where incapacity is by reason of mental disorder, one of them must be a medical practitioner currently listed by the health board under section 20 of the Mental Health (Scotland) Act as having special mental health experience. Where the application relates to the adult's welfare, a further report will be required from the local authority social work department, or the equivalent, giving an opinion as to whether the order is appropriate and on the suitability of the person nominated to be guardian. Where the application relates only to financial or property matters, a report will be required from a person with sufficient knowledge to comment on the appropriateness of the order and the person nominated.
7.8 The Public Guardian will keep a public register of all guardians appointed by the court with a note of the powers conferred.
7.9 Guardians may be appointed initially for a period of 3 years and their appointment will be renewable for 5 years. When appropriate, however, the court will be able to appoint or re-appoint a guardian for a different period of time, including indefinitely. Interim orders will also be possible.
7.10 Only individuals will be eligible to be guardians, except when the local authority's chief social work officer is appointed as welfare guardian. In that case, there will be a requirement to name the person responsible for carrying out the guardianship duties.
7.11 Once the guardianship order has been made, the sheriff court may need to renew or vary it, or to change the guardian. The court will also be able to recall a guardian's powers if the condition of the adult has improved or a guardian is not required to deal with their affairs. Local authorities and the Mental Welfare Commission will also be able to discharge a guardian.
7.12 Joint guardianship will be possible and the guardians appointed will normally be members of the adult's family. Joint guardians will usually be entitled to act independently of each other. In some cases, however, guardians will be required to consult each other before they exercise their powers. Where disputes cannot be resolved, it will be possible to take the matter to court for resolution.
7.13 We will also make provision for the appointment of substitute guardians who will operate on the death or resignation of the original guardian.
7.14 It will be up to the sheriff court to define a guardian's powers, so long as they are appropriate and consistent with the principle that the intervention is the least restrictive of the adult's freedom. The court will also be able to confer a general power on the guardian to deal with all aspects of an adult's welfare or financial affairs. This will, however, be subject to various limitations. A guardian will not be able to consent or agree to the adult's marriage, the adoption of the adult's children or various sensitive medical treatments. Nor will the guardian be able to place the adult in a hospital for treatment of mental disorder against their will.
7.15 Where the adult under welfare guardianship refuses to go to or return to a place of residence selected by the guardian, the guardian will be entitled to apply to the sheriff court for a warrant authorising a police officer to apprehend and take the adult to that place.
7.16 The local authority will supervise the exercise of guardians' welfare powers. The Mental Welfare Commission will have a monitoring role as it has currently in relation to Mental Health Act guardians. This will include visiting those subject to welfare guardianship. The Public Guardian will supervise the exercise of guardians' financial powers and a financial guardian will have to comply with any order made by the Public Guardian. The statutory bodies will investigate complaints or suspicious circumstances and if necessary take action to safeguard the interests of the adult with incapacity.
7.17 A guardian with financial and property powers will be obliged, within 3 months of appointment, to submit an inventory of the adult's estate to the Public Guardian. He or she will also have to draw up a management plan for the estate and submit that for approval to the Public Guardian. The management plan will need to be frequently reviewed. Until the management plan has been approved, the guardian's powers will be limited. Every year the guardian will have to submit accounts to the Public Guardian for audit. If the guardian wishes to sell the adult's home or to buy a house for them, it will be necessary to obtain the Public Guardian's consent.
7.18 The management plan will be used to decide how to invest the adult's estate. The guardian will, after seeking proper advice, be able to retain existing investments and, if the Public Guardian agrees, be able to make new ones in the name of the estate. A financial guardian will be able to run an existing business if this falls within the scope of the powers conferred by the sheriff court. A guardian will not, however, be able to use the adult's funds to start a new business, as this would put the estate at too great a risk. The Public Guardian will be able to give powers to direct the guardian to dispose of investments and to sell the business if this seems appropriate.
7.19 The Public Guardian and the sheriff court will be able to relax some of these requirements for financial management by a guardian where the estate is small or where the guardian has limited powers.
7.20 All guardians with financial powers will have to provide insurance against any claims of mishandling of funds.
7.21 Guardians exercising financial powers will generally be entitled to be paid, although this will not normally apply to guardians with welfare powers. A sheriff court will have to approve any payments to welfare guardians and the level will be set by the Public Guardian. Where a guardian with welfare or financial powers has incurred reasonable expenses in carrying out their functions, they will be entitled to reimbursement from the adult's funds.
Alternative arrangements
7.22 Originally, the Scottish Law Commission proposed that there should be two separate posts of welfare and financial guardian. However, they concluded that it would be simpler to have a single post of guardian, who could be appointed with powers in either field or both.
7.23 The main area of difference between the Scottish Law Commission's recommendations and our approach is to do with the scope of the Public Guardian's role. The Scottish Law Commission recommended that it should be possible to appoint the Public Guardian as a financial guardian and he should set up a scheme for the low-cost management of modest estates. There has been considerable interest in this point, both during and after the 1997 consultation exercise, in which the then government proposed that there should in fact be no financial "guardian of last resort".
Consultation
7.24 The 1997 consultation paper posed a wide range of questions about guardianship and many responses were received, both on fundamental principles such as the role of the Public Guardian, and on more detailed points of procedure.
7.25 There was almost universal support for the proposed new form of guardianship. The majority of respondents agreed that it should not be possible to appoint the Public Guardian as financial guardian although some knowledgeable organisations did want this to be possible.
7.26 We believe the Public Guardian's proper role is a registering and supervisory one and we wish to keep a clear focus on these important protective functions. We also consider that other measures in the legislation will be sufficient to meet effectively the need for financial management on behalf of adults with limited resources. For those with significant funds, it will be necessary to appoint a guardian and there should be no difficulty in identifying someone to act.
7.27 The Millan Committee has expressed the view that it should be possible to appoint the Public Guardian as guardian, but many other organisations in the field now agree with our approach.
7.28 Views were sought in 1997 on how long a guardian's period of appointment should last. A wide range of responses was received. The majority of respondents thought the initial period should be prescribed in legislation and we shall give a guideline on this in the legislation. There was no general agreement on how long the period should be, but we consider that the Scottish Law Commission's recommendation of 3 years (5 years on renewal) strikes the right balance.
7.29 Following consultation about factors to be considered by the court when a guardian is appointed, we shall require the court to take account of any conflict of interest liable to affect adversely the interest of the adult with incapacity.
7.30 Many respondents in 1997 thought the duty imposed on joint guardians to consult with each other was sufficient to guard against stalemate over disputed decisions. We accept the need to give guardians recourse to the sheriff court if problems arise, however, and will make provision for this in the Bill.
7.31 Most respondents agreed that solicitors and local authorities should have to provide insurance if acting as a financial guardian.
7.32 We accept the view of the majority of respondents to the 1997 consultation paper, that the requirements for reports to the sheriff court should be the same for intervention orders as for guardianship. We have considered various suggestions that people acting under intervention orders should be subject to supervision and other safeguards, even though these orders are short-term. We agree in principle and will include some additional provisions for this in the legislation.
7.33 After consultation, we have extended the Scottish Law Commission's provisions for giving notice of applications and orders. The Scottish Law Commission proposed that a guardian should inform the Public Guardian of his or her appointment. We now think that the sheriff court should give such notice, as this will provide a more reliable form of intimation. We shall also ensure that the Mental Welfare Commission and local authority are notified of a welfare guardian's appointment.
7.34 We shall provide that a welfare guardian may apply to the sheriff court for an order directing a third party to implement or comply with the guardian's instructions. Concerns have been expressed to us about this provision and we accept that the indiscriminate use of such a power would be unacceptable. We have therefore provided various safeguards. If a guardian makes such an application, the third party will be given an opportunity to make representations to the court and the sheriff will have to be satisfied that the order will benefit the adult and is the only reasonable way of achieving the desired result. Further, the sheriff will have to be satisfied that compliance by the third party is both possible and appropriate.
7.35 The Scottish Law Commission understood that if a local authority chief social work officer were to be appointed as welfare guardian, the exercise of the powers granted would be delegated to others. Most of the respondents to the 1997 consultation paper agreed that the chief social work officer should be obliged to name the person to whom guardianship is delegated. We are aware of the importance of this principle to service users and will make express provision for it.
7.36 The 1997 consultation paper raised the question of how the Public Guardian is to be satisfied as to the accuracy of a guardian's inventory of an adult's estate. It suggested that an inventory should form part of the guardian's authority to operate. He or she would be obliged to show the inventory to a third party before any transaction, such as withdrawing money from the adult's bank account. Any suspicions on the part of the third party could then be reported to the Public Guardian. To make this scheme effective, the requirement to prepare an inventory would have to be a compulsory one.
7.37 Most respondents thought inventories should be compulsory, although the difficulties and expense of such a scheme were also noted. We have concluded that compulsion would be difficult to implement. We have therefore reverted to the Scottish Law Commission's original proposals and allowed the Public Guardian the authority to dispense with the inventory where appropriate.
7.38 There was strong support in the responses to the consultation paper for the proposal that a threshold should be set below which a management plan could be dispensed with. The paper also asked whether the Public Guardian should have a power to dispense with a management plan. Views on this point were finely balanced and we have therefore adopted the Scottish Law Commission's view that a management plan should not always be necessary but that only the sheriff court should have the power to dispense with it.
|
|
|