CHAPTER 6: EXERCISING WELFARE GUARDIANSHIP
This chapter sets out guidance for single and joint guardians on:
- the duties on welfare guardians
- how to proceed - consulting with the adult and others
- keeping records
- ongoing functions as a financial guardian
- what to do if there is a conflict of interests
- what happens if there is a complaint against you.
DUTIES ON WELFARE GUARDIANS
6.1 This section sets out the statutory duties which you, as welfare guardian, are expected to carry out in exercising your powers. If challenged you should have no problem justifying your actions if you are able to demonstrate that you have acted in good faith.
Duty of care
A guardian or other person acting under the Act is held at common law to owe a duty of care to the adult with incapacity. You must act with due skill and care in exercising the powers you have as a welfare guardian. A professional person acting as a guardian must demonstrate the skill and care that would be expected of a reasonably competent member of that profession.
Fiduciary duty (position of trust)
A guardian has what is known as a 'fiduciary duty' to the adult. This means that you are placed in a position of trust with respect to the matters covered by your powers. The court has placed trust in you to exercise the powers properly.
- Duty to apply the principles (see paragraph 6.45)
- Duty to keep records
A guardians must keep records of: major decisions made and actions taken; over which they have control (see paragraph 6.43).
There are three separate issues that arise under the heading of confidentiality. These are:
- your right to have access to confidential information about the adult;
- the use and proper disclosure of confidential information about the adult;
- your fiduciary duty (the trust placed in you) to maintain the adult's confidentiality.
The issue of access to confidential information concerning the adult should be covered in the original guardianship order. Similarly your right to disclose information about the adult should have been covered in the original order.
Where someone holding confidential information refuses to disclose it to you and your powers do not explicitly authorise you to demand it, then you should consider whether the party in question has other duties to the adult which may override the duty of confidentiality, and if so to explain this.
For example, a medical practitioner might refuse to disclose the adult's medical history to you, but the medical practitioner may also have a duty to ensure that the adult continues with necessary medication or receives planned treatment at the proper time, and may recognise that you as welfare guardian are in a good position to assist in meeting this responsibility.
If you cannot obtain the information you need because of inadequacy of your powers as guardian, you might wish to seek the advice of the local authority or MWC, take legal advice, or seek an intervention order in relation to the information in question.
- Duty to inform the Office of the Public Guardian of any change in circumstances
For details of requirements see paragraphs 6.19.
OFFENCE OF ILL-TREATMENT AND WILFUL NEGLECT
6.2 It is an offence for anyone exercising welfare powers under the Act to ill treat or neglect an adult. The penalties for someone found guilty on summary conviction of the offence under the Act are up to 6 months imprisonment or a fine of up to Â£5000 or both. Someone convicted of the offence on indictment may be imprisoned for up to 2 years or given an unlimited fine or both.
REVIEWING ARRANGEMENTS AND THE NEEDS OF THE ADULT
6.3 If you are the nearest relative and/or primary carer of the adult you may be conversant with the adult's affairs either because you have day to day contact with the adult, or you have already been exercising a power of attorney over property and financial affairs while the adult retained capacity.
6.4 The guidance below is written on the basis that you as guardian, the nearest relative and the primary carer are separate people. It is possible that two or all three of these roles are combined in the same person. While this simplifies some of the consultation requirements, it is nevertheless important that you read, understand and follow the code even if you are the nearest relative and/or primary carer, and perhaps already familiar with the adult's circumstances and needs.
6.5 Although it is helpful to be familiar with the adult's circumstances and needs, it can be important to step back and review the whole situation, in case there are elements which you have not previously thought about or may not previously have been fully aware of.
6.6 The guidance applies equally to single guardians and to joint welfare guardians with concurrent powers. The word 'you' should be read in the plural where there are two or more welfare guardians.
ACTION ON RECEIVING THE CERTIFICATE OF APPOINTMENT FROM PUBLIC GUARDIAN
6.7 As soon as you receive your certificate, you should arrange to meet the adult, the nearest relative, primary carer, named person and anyone else who has a close interest in the adult's welfare, in order to discuss what happens next. You may also wish to involve anyone with powers in relation to the adult's property and financial affairs in case the decisions you take have financial consequences for the adult.
6.8 You should discuss with the adult, the nearest relative or anyone nominated by the sheriff to act in place of the nearest relative and primary carer how you will go about your functions. For example, you should clarify that you would like regular meetings and with what frequency. You should identify and discuss any matters of particular importance which need to be addressed or are likely to arise in future.
6.9 You will probably, before applying for guardianship, have undertaken a review of the arrangements in place for caring for the adult's personal welfare. Therefore your first actions under your powers will be based on the reasons which led you to seek guardianship in the first place, for example to move an adult into residential care; to support an adult who has suffered brain damage; to protect a young person with a learning disability through a requirement to live in particular supported accommodation. You should make it clear to the adult and relevant others how you propose to implement the necessary action and what the timescale will be.
6.10 When you sought the guardianship order, you should have ascertained the adult's wishes and feelings in relation both to the general idea of welfare guardianship and to the specific steps that were in contemplation. However it would be good practice to check again that you have a clear idea of the adult's wishes and feelings. If there has been a change of plan, for example, you originally recommended one specific residential establishment, but a choice of one or more others has emerged, you should certainly make it clear to the adult and others that there has been a change, and seek their views.
Where relevant, notify the adult's doctor
6.11 As noted in paragraphs 6.63-4, a doctor's authority to treat an adult under part 5 of the Act does not apply where you have relevant powers and the doctor is aware of this, except where it has not been reasonable and practicable for the doctor to obtain your consent. It is therefore very important if you have powers relating to medical treatment that you make sure that the doctor primarily responsible for the adult's treatment knows of your appointment and knows how to contact you.
What to do if the adult has communication difficulties
6.12 If the adult has communication difficulties, you should follow the guidance set out in the Annex 1.
6.13 In cases where the adult has seriously impaired capacity, it would be acceptable practice to meet the nearest relative or anyone nominated by the sheriff to act in place of the nearest relative, primary carer and named person separately from the adult; but also meet the adult and any person who can assist him or her with communication, such as someone from an independent advocacy project.
Delegating functions to the adult
6.14 If it is within the scope of your powers you may be able under section 64(1)(e) of the Act to authorise the adult to carry out such transactions or categories of transactions as you may specify. By doing so, the principles are being applied. You should make it clear when first meeting the adult and relevant others, whether you propose to delegate any decisions to the adult. Unless you expressly delegate your authority, the adult will have no lawful authority to take such decisions.
For example, you may have been given authority to determine the adult's diet, dress, appearance and with whom the adult shall consort. But you may want to make it clear at the outset that you will not be deciding on a day to day basis what the adult should wear or whether he or she should have his or her hair styled or cut. Or you may want to make it clear that over time you propose to delegate to the adult decisions about aspects of his or her social life, if he or she demonstrates the ability to cope with and manage his or her friendships and other associations.
Check your powers
6.15 Before embarking on the course of action which you have decided is appropriate, you should check that it is within the scope of your guardianship order.
For example, if you sought guardianship with a view to arranging for an adult to move into residential care, but in the meantime the adult has been diagnosed as having a condition requiring a routine operation, you should check whether you as guardian can consent to the operation and to any subsequent steps to rehabilitate the adult, before the residential place is taken up.
If your powers do not cover the action you may wish to apply to the sheriff for a variation of your guardianship order; or you may decide this is not necessary.
For example, if you as guardian have not been given powers to consent to medical treatment, a medical practitioner could give such treatment under the general authority in Part 5 of the Act.
(Section 52 of the Act provides that anyone having an interest in the adult's personal welfare can appeal to the sheriff about a decision on medical treatment taken under the general authority to treat.)
ONGOING FUNCTIONS AS A WELFARE GUARDIAN
6.16 Once you have taken the initial action to deal with the issues that led you to seek guardianship, you have responsibility to engage actively with the adult and relevant others to ensure that problems are anticipated and future planning undertaken to deal with these.
Make sure you can be contacted
6.17 You should ensure that the adult, the nearest relative or named person, or anyone nominated by the sheriff to act in place of the nearest relative, the primary carer, the named person, the financial guardian (if any), the general practitioner and any other person with an interest in the welfare of the adult, is readily able to contact you. You should make available to all of these your full contact details, including any other names by which you may be known, your preferred contact address, telephone number, fax and e-mail, your emergency contact details and the name and contact details of any other person who can get a message to you quickly. You should warn the persons who have your contact details in relation to your functions as guardian if you are likely to be unavailable for any period of time. If no substitute or joint guardian has been appointed, it would be in the adult's best interests for you to ask someone to undertake to contact your local authority supervisor in the event that, e.g. a serious accident, prevents you from undertaking your duties as guardian and from notifying the local authority yourself.
Delegation of functions
6.18 You may expressly delegate your functions to one or more other persons at any time. For example a guardian may ask a care worker to decide when the adult needs services such as hairdressing or chiropody. However, you remain responsible. You are not entitled to surrender or transfer any part of your functions to another person and the responsibility for ensuring that they are properly exercised therefore remains with you. Where functions are delegated to someone else you should make every effort to inform the adult of the details of this.
Notifying the OPG of change of circumstances
6.19 The Act requires that the OPG is notified if the following changes occur:
- If you or the adult changes address, you have a responsibility to notify the Public Guardian within 7 days under section 64(4) of the Act.
- If the guardian dies, his/her personal representative should notify the Public Guardian (under section 75A). This is to ensure that the Registers maintained by the Public Guardian are kept up to date.
- If the adult dies you should notify the Public Guardian.
- If the adult regains capacity the guardianship order should be recalled (see chapter 7).
Hold regular review meetings
6.20 You should ensure that you meet the adult, the nearest relative or anyone nominated by the sheriff to act in place of the nearest relative, the primary carer, the named person, the financial guardian and any other person with an interest in the welfare of the adult at appropriate intervals. The frequency of such review meetings will depend on the extent of your day to day contact with these individuals. If you are a lay guardian your local authority supervisor will be able to advise on collaboration with others and assist with these meetings.
6.21 In preparation for such meetings, you might undertake a fuller review of the adult's welfare. This would be appropriate in the case of someone whose situation is changing over time, for example someone being rehabilitated after a brain injury or a person with a learning disability, who is displaying some degree of increasing maturity and insight; someone with a mental illness which is becoming more or less florid; or someone with an increasing level of dementia. Even if you are the primary carer as well as the guardian, it would be good practice to adopt the discipline of standing back from your immediate situation and looking at the adult's circumstances in an objective way.
6.22 Depending on your powers, this might involve the following considerations and/or action.
- Checking whether the adult seems well and happy in his or her current circumstances. If not, can the circumstances be changed so as to improve matters for example by modifying the home in some way (see below), and obtaining further support such as a home help? Has the adult reached the stage of requiring residential care?
- Assessing the adult's accommodation and facilities for suitability for his or her needs. For example, could the adult benefit from special equipment to assist with a physical disability, or a move of bedroom nearer a bathroom; or more privacy? Is the accommodation warm enough?
- Has the adult adequate clothing? Is there any need for clothing to be purchased which would make it easier for the adult to dress independently?
- How is the adult supplied with meals? Can he or she cook meals or heat them up so as to learn or maintain the use of skills? Is there someone who cooks for the adult? Does the adult attend a luncheon club or could he or she do so if suitable arrangements were made? Does the adult receive meals on wheels and if not, could these benefit the adult? Does the adult have special dietary requirements, for example religious, vegetarian, low fat, low salt, gluten-free, etc.?
- Is the adult's home clean and well-maintained? Would the adult wish it to be cleaned by contractors or decorated? It is important, however, not to impose your own standards on the adult.
- How does the adult spend his or her time during the day, on weekdays and at weekends? Is he or she attending any kind of activities or day centre? Does he or she have friends or relatives who call? Does he or she have hobbies or interests? If the adult is bored, why is this the case and can anything be done about it? For example, it may be that the primary carer has no access to the adult's funds for outings.
- Is the adult in employment or training? If not, is there any possibility of improving the adult's welfare by arranging for training or employment within the adult's capacity?
- Does the adult need a holiday? Would it benefit the adult if his or her carer had a holiday or if the adult had a holiday away from the carer? Should periodic respite care be arranged?
- Does the adult have a religious affiliation that he or she would wish to maintain? Is there a member of the clergy who visits or might be willing to visit the adult? Are there arrangements to take the adult to his or her place of worship?
- Does the adult have any ongoing medical problems and how are these being tackled? What is the diagnosis, likely development of any illness, and longer term prognosis?
- Is the adult's personal appearance acceptable? It is important not to impose your standards on the adult, paying full respect to the adult's known preferences, wishes and feelings, but the adult's dignity is important and specific issues such as whether hair and nails are clean and well cut should be considered.
- If the adult is in residential care, does the setting afford a reasonable amount of personal dignity and privacy. Could his or her welfare be improved by increasing the adult's independence?
- Is the adult maintaining contact with others who are important to him or her? Could the adult's welfare be improved by facilitating such contact, for example by encouraging visitors or arranging payment for visits to and by others?
Make sure you always know who has powers over the adult's property and financial affairs
6.23 As welfare guardian, you will need to know and keep up to date your information on who has control over the adult's property and financial affairs as your decisions on welfare matters may require expenditure to be incurred and decisions taken in relation to the management of finances and/or property might impact on the adult's welfare.
6.24 You should have been clear at the time you applied for welfare guardianship whether there was anyone else authorised under the Act to deal with the adult's property and financial affairs, such as:
- a continuing attorney;
- a person authorised to access funds in an account held by the adult;
- managers of a residential home authorised to manage the adult's funds;
- a person authorised under an intervention order with powers over property or financial affairs;
- a financial guardian.
6.25 You should also know whether there is any other person with powers over the adult's financial affairs, in particular:
- any trustees of a trust set up for the benefit of the adult, or in which the adult has an interest;
- any discretionary pension fund arrangements;
- any holder of a joint account with the adult;
- any DWP appointee who will have authority to claim and receive benefits on behalf of the adult and who will also have authority to act generally on his or her behalf in respect of social security matters;
- anyone who has been managing the adult's affairs under informal arrangements.
6.26 You may find as welfare guardian, that if you yourself do not have any powers over the adult's property and financial affairs, and you cannot find anyone else who has these powers, or there is such a person but he or she is not co-operative, you are hampered in carrying out your functions properly.
6.27 If you have such difficulties you may wish to:
- consult your local authority supervisor;
- consult the Public Guardian (in the case of a continuing attorney, person authorised to access funds, person authorised under an intervention order with powers over property or financial affairs, or financial guardian);
- take legal advice.
6.28 You are entitled to complain to the Public Guardian if you feel that an adult's property or financial affairs are at risk, even if the person managing these is not appointed under the Act. The Public Guardian has a duty to carry out an investigation of any circumstances made known to him in which the property or financial affairs of an adult seem to him to be at risk. She also has a responsibility to investigate complaints against specific continuing attorneys, persons authorised to deal with the adult's funds, persons authorised under an intervention order or financial guardians. The MWC can also investigate any circumstances made known to them in which the property of an adult may be at risk of loss or damage because of the adult's mental disorder.
6.29 You may not have thought of seeking powers yourself over the adult's property and financial affairs, but this option would be open to you at any time, even if there is someone else exercising these powers. For example, you could apply to the sheriff for a continuing attorney to be removed, if you thought there was evidence that he or she was not carrying out his or her duty to care. You or someone else you trust could apply to be appointed financial guardian in his or her place.
Community care services
6.30 If the adult is in receipt of community care services, you should have the name of the care manager or social work officer within the local authority who has been involved in the his or her assessment and provision of services. If you don't have this already you can find out by contacting the social work office in the area where the person lives.
6.31 If the adult has not been assessed for community care, or has a disability and has not had his or her needs assessed in terms of access to particular services or allowances, you should consider asking for a needs assessment to be done. If you are the adult's carer, you can ask the local authority for a carer's needs assessment or, if someone else is the carer, you can suggest this to him or her.
6.32 If the adult is attending a day centre, or has a support worker you should also speak to these staff to find out how they are meeting the social and care needs of the person, and to agree arrangements for routine communication.
6.33 If the adult is in residential care, you should visit the home where the adult resides and check for yourself that the adult is being properly cared for.
Assessing the need for change
6.34 A review may result in one or more recommendations for steps to improve the adult's welfare. In reaching your assessment, you must have regard to your own powers and reread your guardianship order to make sure that you are clear about these. You may find, for example, that you identify a need, but that you would not be able to make a decision or take the necessary action because you do not have the powers. If this is the case then you should consult the social work officer responsible for care arrangements for the person. In certain situations the local authority may have the power to provide the necessary services under the Social Work (Scotland) Act 1968 and no further action by you will be necessary.
6.35 In some cases the adult's capacity may have improved, or it may be a decision or action he or she capable of taking. He/she should be enable to do so in accordance with the principles.
6.36 You may find carrying out the duties of welfare guardianship too much for you on your own. In such circumstances it is advisable to seek the appointment of an additional guardian to help you.
6.37 There may be circumstances in which you need to seek additional powers. You may also wish to consider applying for an intervention order to enable you or someone else to take the action in question. Some decisions, such as marriage, cannot be taken by anyone else on behalf of an adult, but they may have welfare consequences which require to be taken into account by a guardian.
6.38 A review should look ahead to anticipate the future needs of the adult.
- If the adult's tenancy is due to come to an end, renewal or obtaining alternative accommodation.
- If the adult's spouse is seeking a divorce in which case you may need to make arrangements to ensure that the adult has adequate legal advice on his or her position regarding property and financial affairs, residence of and contact with children and so on.
- If the adult has decided to marry (but remember that you cannot consent to marriage, only the adult can do so. What you can do is take into account the consequences for the adult's living arrangements and so on).
- If the adult is due to come into funds, such as on the maturity of a life assurance policy, which would enable additional goods or services to be purchased.
- Any possible move to residential care.
- Any operation or other treatment required by the adult in respect of a medical condition.
- The provision of any aids, adaptations, etc. for the adult.
- Visits to the dentist, chiropodist, etc.
- The adult seeking or changing work, or training, or wishing to exercise or develop an artistic talent or to attend occupational therapy, or a different day centre placement.
- A holiday or respite care for the adult.
- Attendance at particular family or social occasions such as weddings, ceremonies related to the birth of a child, reunions, etc.
- Care of the adult should the current carer be threatened with illness or absence for some reason.
Obtaining specialist advice
6.39 You should consider whether decisions require to be made now or in the near future on which you require specialist advice.
6.40 Where you have medical/health care decision-making powers, and, for example, the adult has a developing medical condition, you will need to ensure that the adult receives adequate medical care. You will need talk to any consultant or other medical practitioner caring for the adult, so that you can discuss and understand the adult's condition and treatment options. But remember that you do not have the right to consent to certain treatments (see paragraph 4.18). For information about what to do if you disagree with the doctor, see paragraph 4.50.
6.41 The adult may be able to obtain help and support from voluntary organisations which assist people with disabilities generally, or people with particular conditions. You may also find a source of help and support in these organisations. Some addresses are given in Annex 3.
6.42 If you need legal advice, contact your local Citizen's Advice Bureau, or specialist voluntary organisation who may be able to provide the advice you need. If you need to engage a solicitor, the SLAB website has a list of solicitors registered to conduct legal aid work; the Law Society of Scotland provides information on solicitors with a special interest in mental health legislation. (See Annex 3.)
6.43 As a welfare guardian you are obliged to keep a record of the major decisions and actions you have taken on behalf of the person. It will be helpful to keep a file of information that you have gathered and that you need to refer to from time to time. Such a file might contain:
- a copy of your original guardianship order, and any variation and your certificate of appointment from the Public Guardian;
- the contact details of your local authority supervisor;
- the name, address and other contact details of all those involved in the adult's day to day care;
- the name and address of all those with powers over the adult's property and financial affairs;
- the name and address of any officer of the social work department providing community care services for the adult; and any home help or other service provider involved in the adult's community care;
- the name and address of any relatives or friends with an interest in the adult's welfare;
- the name and address of any relatives or friends with whom the adult maintains contact;
- any forthcoming or regular appointments which should be kept by the adult in relation to personal welfare matters such as visits to the hospital, dentist, chiropodist, etc.;
- the names, addresses and other contact details of any professional advisers with whom you will be dealing over the adult's welfare, such as a psychologist, general practitioner, community nurse or solicitor;
- information about the adult's disability and its consequences; special requirements; dietary requirements; aids used, etc.;
- the names and addresses of any voluntary body contacts which you have established;
- if you have welfare powers - a file a copy of the letter you will have received on appointment from the MWC; the helpline number for the MWC and name of any office you may have had contact with;
- a note of any key decisions required in the foreseeable future.
If YOU THINK THAT A MAJOR DECISION/ACTION NEEDS TO BE TAKEN
6.44 As you continue to exercise your functions and review the adult's welfare from time to time, you are likely to develop new ideas about what could be done to improve the adult's welfare, or such ideas might be suggested to you by others. You should discuss such new ideas with your local authority supervisor and check that your powers would cover them. The following are points to consider before acting:
Apply the principles
6.45 In determining whether an action and/or decision needs to be made you must apply the principles.
- Firstly, you must consider whether the action and/or decision would benefit the adult, and such benefit cannot reasonably be achieved in any other way.
For example, If the adult is in a care home and appears undernourished and losing weight, discuss diet with the care manager and find out if food is being made available to the adult, and whether some help at mealtimes would enable the adult to eat properly. Appetite might be affected by a change in mood - talk to the adult about how he or she is feeling and what would help to feel better. If you are worried that the person may be depressed then a review of the care plan with the social worker, and a medical assessment may be advisable.
- Secondly, you must consider whether the action and/or decision is the least restrictive option in relation to the freedom of the adult, consistent with the what you want to achieve.
For example, if the adult becomes increasingly dependent you will need to consider the options for how best to meet his/her personal care needs, taking account the person's physical abilities, the person's home environment, social contacts as well as the person's past and present wishes. Moving the person to a care home may be more restrictive than necessary if additional support can be provided to the person at home.
- You also need to take into account the past wishes and feelings of the adult, as far as they can be ascertained. You should try every appropriate means to assist communication and try to interpret non-verbal signs and signals, such as resistance or discomfort It will also be advisable to ask other people how best to communicate with the person and what they may know about the persons wishes and feelings about the matter in hand. Guidance on communicating with the adult is contained in Annex 1.
For example, you should think twice about recommending that the adult should attend a luncheon club if you know from previous discussions that the adult would feel embarrassed to be seen by others in such a setting. If the adult has said in the past that he or she would rather live in a residential home than be a burden to relatives, then that view should be taken into account.
For example, if you think the person should move to a care home but you know that this is not what he or she would have wanted, you should do everything you can to ensure adequate support at home before taking such a step. The adult's views are not overriding, and everything depends on the particular circumstances. If, for example, you intend to use your power to direct where the adult can live, you will be able to back that power up with compulsion (section 70 of the Act - see paragraphs 6.76-7).
- You also need to take account of the views of the nearest relative or anyone nominated by the sheriff to act in place of the nearest relative, the primary carer, the named person and in so far as it is reasonable and practicable to do so, and of anyone else with an interest in the welfare of the adult. You might wish to write or phone if it is not convenient to meet these others. If the nearest relative is unable to attend meetings, for example, because he or she lives far away, or does not respond to letters, then you may not be able to ascertain the nearest relative's views. Similarly, if the primary carer is unable or unwilling to give views, then you may not be able to ascertain the primary carer's views, but you should do what is reasonable and practicable to ascertain these views.
Consult anyone with financial powers
6.46 It would be prudent to consult any person with powers over the adult's property or financial affairs about any decision that would have financial consequences, or require the adult's home or other property to be sold.
Consult professional carers involved with the adult
6.47 If a community care worker or community nurse is involved in providing services to the adult, you should discuss your proposals with them.
6.48 If you have taken professional advice, you may also wish to involve your professional adviser or advisers in considering the matter, especially if it has wide repercussions, such as a move to residential care. Similarly, if you have regular support from a voluntary body, you may wish to involve them.
Check your powers
6.49 If you decide that an intervention is needed, you should check whether your powers would cover that particular intervention.
Encourage the adult to exercise residual capacity
6.50 Finally, you should, in so far as it is reasonable and practicable to do so, encourage the adult to exercise whatever skills he or she has concerning his or her personal welfare, and to develop new such skills.
A stroke victim who has lost substantial mental and physical capacity might, for example, with suitable support, learn to care for him or herself to some extent. A person with dementia should still be encouraged to take his or her own decisions about clothing, diet, appearance and how to pass time, rather than having these things dictated to him or her by someone else, however convenient that may be. For someone with a brain injury, encouragement to exercise skills and develop new such skills may be a major part of the rehabilitation process.
6.51 You should consider the extent to which the adult could be assisted to take the necessary action with support from yourself or others.
For example, visual aids may help the person chose his or her own meals and clothes. Aids to daily living may assist the person have an increased degree of independence. The adult could be provided with specialised equipment such as a motorised wheelchair, a stair lift, taps operated by levers or low level sinks in order to be able to do more for him or herself. The adult, if mobile and able to do so without undue risk, could be encouraged to take walks, travel by public transport, attend recreational or social activities and make small shopping purchases independently. The use of personal alarms and other modern technology could enable the adult to enjoy more independence without running undue risks. Voluntary organisations could also be contacted to ascertain whether they provide services that could enable the adult to lead a fuller life. Such services are usually funded by the local authority social work department and require a formal referral.
RECORDING ACTION TAKEN
6.52 Having followed this process it should be possible to reach conclusions on the actions needed in relation to the adult's personal welfare, which are based on proper investigation, and which comply with the principles. You should record these conclusions on your file. For example, you should file
- photocopies or electronic copies of any correspondence relating to the adult's personal welfare;
- a note of any important telephone calls about the adult's welfare; for example if someone phones to inform you of any incident relating to the adult, such as involvement in an accident, argument or fight; or of the adult's being taken ill;
- copies of invoices and receipts for any purchases incurred on behalf of the adult. The Public Guardian will need to see this in order to authorise reimbursement from the adult's estate;
- any correspondence with anyone having powers over the adult's property or financial affairs or over how the adult's welfare needs are to be met. For example, you as welfare guardian may not wish to seek financial powers but you may be able to agree with the Public Guardian that you can make significant welfare purchases from the adult's estate, such as a motorised wheelchair or adaptations to a dwelling house.
MONITORING THE ADULT'S PERSONALWELFARE
6.53 It would be good practice, within the scope of your powers, to monitor the adult's personal welfare on a regular basis and not just at the time of formal review meetings. Alternatively, you may be able to arrange that someone else with day to day contact with the adult contact you on a regular basis confirming the adult's circumstances.
6.54 Although you may not have any financial powers yourself, you should also check that the adult's finances remain under control, by regular liaison with anyone having such powers. You may need to seek financial powers under appropriate procedures if you find that lack of influence over the adult's property and financial affairs is impeding your functions as welfare guardian.
SEEKING ADVICE OF THE LOCAL AUTHORITY AND MENTAL WELFARE COMMISSION
6.55 The local authority must supervise a welfare guardian and your supervision will take the form of regular meetings, reporting arrangements, and visits both with and without warning to yourself and the adult. However, the local authority also has a responsibility at any time to give you advice and guidance on the exercise of your welfare powers. It is therefore a good idea to contact the local authority social work department if in doubt about the scope of your powers, or about the course of action you propose to take. Your normal contact will be your local authority supervisor, but you should keep a note of the contact details of any social work officer with whom you have had contact and record any conversation and action agreed. You should be aware of how to contact the social work department out of hours in the event of any crises.
6.56 The MWC will have been notified of your appointment by the Public Guardian following registration of your guardianship order. The MWC can provide valuable advice to anyone exercising welfare powers in relation to an adult whose incapacity is due to mental disorder. The MWC will also regularly visit adults on guardianship whose incapacity is due to mental disorder.
WHAT TO DO WHEN THERE ARE CONFLICTING VIEWS ON A PROPOSED INTERVENTION
6.57 When you hold reviews with the adult, the nearest relative or anyone nominated by the sheriff to act in place of the nearest relative, primary carer, named person any fellow guardian and anyone else having an interest in the property, financial affairs or personal welfare of the adult regarding the exercise of your powers, you should try to ensure that you have adequate warning if there is likely to be a disagreement. Do not take action that will come as a surprise to the others but make sure that you have taken proper account of their views. Keep an open mind until you have heard, understood and considered all relevant views.
6.58 Despite your best efforts, however, there may occasionally be disagreements which cannot be readily resolved.
For example, there may be a dispute as to whether the adult should be moved into residential care, with some of those with an interest believing that the adult's capital in the home should be preserved and that relatives can or should continue to care for the adult. There may be a dispute as to medical treatment, with some relatives considering that the adult should have a particular operation but others thinking that the adult's quality of life will not be sufficiently improved to justify the risk.
6.59 In seeking to persuade others of your point of view, you should direct those who disagree with you to your statutory responsibilities as guardian, and to the powers that the court decided, after careful consideration of all reports and representations, to confer. It will assist you if you can show that:
- you have applied the principles systematically;
- you have balanced one principle against another in the correct manner. For example you need to consider benefit to the adult as well as minimum intervention. If someone who disagrees with you takes minimum intervention as a starting point, he or she may be attaching insufficient weight to the need to benefit the adult;
- you have taken account of the past and present wishes and feelings of the adult so far as these can be ascertained;
- you need to take account of the views of the nearest relative or anyone nominated by the sheriff to act in place of the nearest relative, primary carer, named person and anyone else appearing to you to have an interest in the welfare of the adult or in the proposed intervention. But you do not need to accord undue weight to any one view. Nor do you need to follow the majority view where you have carried out your own assessment of the need for an intervention, and it does not agree with the majority. On the other hand, you should never be afraid to reconsider where new information or a new point of view is drawn to your attention.
6.60 If you are unable to persuade others to accept your judgement, you may wish to seek additional advice, for example from the MWC, from the local authority, from a solicitor, a medical practitioner or a voluntary body. If you can produce written advice that supports your decision, this may help in defending your actions. In particular, you should seek advice if the adult him or herself disagrees with a particular course of action which you are convinced is in the adult's best interests, for example a move to residential care. If you are an officer of a local authority, you should raise any intractable disagreement with your line manager who may decide to convene a case conference in order to discuss the matter.
6.61 Ultimately you may find that you simply have to insist. If you are confident in your judgement, do not back down. You would be letting the adult down if you gave in for the sake of peace; or stood down, leaving the adult with no-one to take care of his or her welfare.
6.62 If you still encounter difficulty you can advise those who disagree with you of their right to complain to the local authority. You can also direct those who disagree with you to section 3(3) of the Act which allows them to apply to the sheriff for directions. Alternatively you can exercise your own right to apply for directions under section 3(3).
DISAGREEMENTS ABOUT MEDICAL TREATMENT
6.63 Part 5 of the Act provides and qualifies a general authority under which a medical practitioner may give treatment to an adult. In Part 5 'medical treatment' includes any procedure or treatment designed to safeguard or promote physical or mental health. It makes provision for the resolution of disputes between medical practitioners and welfare guardians with power in relation to the treatment in question (and between them and others having an interest) and for appeals by any person having an interest in the personal welfare of the adult to the courts in respect of decisions taken under this Part.
6.64 If you do not agree with the medical practitioner primarily responsible for the adult's medical treatment, and the doctor does not accept your view, the doctor must request the MWC to provide a 'nominated medical practitioner', from a list held for this purpose, to give a further opinion as to the medical treatment proposed. The nominated medical practitioner must have regard to all the circumstances of the case and must consult you. The nominated medical practitioner must also consult another person nominated by you, if it is reasonable and practicable to do so. If after taking these steps the nominated medical practitioner certifies that in his or her opinion the proposed medical treatment should be given, then the medical practitioner primarily responsible may give the treatment, unless you or some other person with an interest in the adult's welfare appeals to the Court of Session against this. The medical practitioner primarily responsible for the treatment also has a right of appeal to the Court of Session against the decision of the nominated medical practitioner.
CONSENT TO MEDICAL RESEARCH
6.65 Consultations prior to the Act established a need to clarify the law in the area of research. There was also general agreement about the need for greater understanding of the conditions which cause people to lose capacity and congenital conditions which may be associated with incapacity. Equally it was recognised that there was a need to protect people who were not capable of understanding research or of agreeing to participate. The Act seeks to strike a balance between research targeted at extending knowledge of the conditions which affect adults with incapacity and ensuring that sufficient protection is in place for adults who may be involved in research.
6.66 If you as guardian have powers to consent to the adult's participation in research, you may be asked to consent to this at some time. If this happens, it is essential that you are aware of the safeguards, that you feel free to ask questions about what is being proposed and that you know how to bring the adult's participation to a halt, if necessary.
6.67 Section 51 states that research is not permitted on adults incapable of giving consent if it could be carried out on adults who are capable of giving consent. The purpose of the research has to be to obtain knowledge about the causes, diagnosis, treatment and care of the adult's incapacity and/or to learn about the effects of the care and treatment being given to the adult for his or her incapacity. The following conditions are required:
(a) the research is likely to produce real and direct benefit to the adult;
(b) the adult does not indicate unwillingness to participate in the research;
(c) the research has been approved by the Ethics Committee;
(d) the research entails no foreseeable risk, or only minimal foreseeable risk to the adult;
(e) the research imposes no discomfort, or only minimal discomfort, on the adult; and
(f) consent has been obtained from any guardian or welfare attorney who has power to consent to the adult's participation in research or, where there is no such guardian or welfare attorney, from the adult's nearest relative.
6.68 The Act provides that research may be carried out even where it is unlikely to produce real and direct benefit to the adult if it will contribute significantly to the scientific understanding of the adult's incapacity and benefit others with the same incapacity. The conditions (b) to (f) above have to be met.
6.69 The Ethics Committee to review research involving adults with incapacity was established by regulations (The Adults with Incapacity (Ethics Committee) (Scotland) Regulations 2002). These regulations set down some of the matters which the Ethics Committee must take into account when appraising the research. The Ethics Committee may examine such other matters as are relevant and appropriate to the applications submitted to them.
CONFLICT OF INTEREST AFFECTING YOU AS GUARDIAN
6.70 As welfare guardian, you may be someone close to the adult in another capacity such as relative, or carer. You may find that this occasionally creates a conflict of interest between your own personal interests and your fiduciary duty. Do not let this worry you unduly. The very person who is best suited to be welfare guardian is likely to be someone close to the adult and this situation will not be uncommon.
For example, relatives might argue that it would benefit the adult to spend Christmas at home, instead of in residential care, but you as welfare guardian might feel that this is too risky for the adult, as he or she might require nursing care that family members could not provide. Alternatively, relatives might press you not to take the adult on a particular outing or trip, such as to the wedding of a family member, but you might feel that you want to go, that you have to take the adult with you, and that the risk is acceptable.
6.71 In these as in all other circumstances you should observe the principles. Ask the adult's opinion and consult anyone else with an interest in the adult's welfare. If the step which is being contemplated has implications for property or financial affairs, then the continuing attorney, financial guardian or anyone else with powers to intervene in the adult's property or financial affairs should be consulted. If the adult can no longer express an opinion, but had been able to do so in the past, consider what he/she would have thought of the proposal.
For example, if the adult expressed views in the past about family Christmas, these should be taken into account. It might not have been something he or she particularly enjoyed. If the adult was close to the person getting married that could also be relevant. If the adult was not close to that person then maybe you should think again, and consider whether some other arrangement could be made such as respite care for the adult, to allow you to attend alone.
6.72 If you are in doubt about the proper course, or find that you are being challenged, there are various options open to you. The obvious first step would be to discuss the matter with your local authority supervisor. If you feel the need of a range of opinions, you could:
- ask someone from an independent advocacy project to support the adult in putting forward his/her views in discussing the matter with you;
- consult the MWC, where the adult's incapacity is due to mental disorder;
- seek advice from a solicitor if you are being challenged by someone else with an interest such as a relative;
- seek directions from the sheriff under section 3(3) of the Act.
WHAT TO DO IF YOUR POWERS ARE INSUFFICIENT
6.73 You may find that your powers are insufficient to carry out a particular intervention which is necessary. For example, the time may come to sell the adult's house so that he or she can move into residential care, but there may be no-one with powers to deal in the adult's heritable property.
6.74 In these circumstances you may need to consider using one of the other interventions under the Act or asking someone else to do so. For example you may not wish to start to exercise powers over property and financial affairs and therefore you may wish to ask a professional person to seek such powers if no-one else has them.
6.75 The options include:
- applying to the Public Guardian under Part 3 to withdraw funds from an account held by the adult to meet his or her day to day expenses. The Public Guardian (Scotland) can provide you with an application form and guidance notes on this procedure, and it is also covered by a code of practice available from the Scottish Government Justice Department and OPG;
- applying to the sheriff for an intervention order under Part 6 of the Act to empower you to take the necessary steps or give the necessary consent (see part 2 of this code);
- apply to become financial guardian to the adult.
POWER TO COMPEL CO-OPERATION BY THE ADULT
6.76 If the guardian is unable to persuade the adult to accept his/her judgement, he or she has recourse to the court. If a less formal way forward cannot be found welfare guardianship carries with it a right to apply to the sheriff under section 70 of the Act for an order compelling the adult to comply with the decisions of the guardian. The sheriff may, on cause shown, disapply the intimation requirement and corresponding right to object within a prescribed period. The reason for this is that in urgent cases a delay of the prescribed 21 day period can prove detrimental to the welfare of the adult concerned. In a case where the welfare guardian has powers to determine where the adult should live, a sheriff can grant a warrant to a constable to enter premises, apprehend the adult, and take him or her to such place as the guardian may direct. There is a prescribed form for making an application under section 70. It is available from your local sheriff court or at http://www.scotland.gov.uk/topics/justice/civil/awi .
6.77 It is anticipated that the section 70 procedure will be used only occasionally by a welfare guardian, for example to remove the adult from an unsuitable place to one where the guardian has decided he/she should live. It represents a potentially substantial encroachment on the personal autonomy of an adult who is refusing to give effect to a welfare guardian's decision. Before making an order or granting a warrant under section 70, the sheriff would have to be satisfied that the principles in the Act were being met. There would have to be a positive benefit to the adult and the order or warrant would have to be the only reasonable way of achieving that benefit. In dealing with a habitual absconder a new warrant would be needed for each incident.
WHAT IF THERE IS A COMPLAINT AGAINST YOU?
6.78 If someone has a complaint against you, and either does not put it to you or is not satisfied with your response, he or she has recourse to the local authority in the first instance. The local authority has a duty to receive and investigate all complaints regarding the exercise of functions relating to personal welfare of an adult made in relation to guardians.
6.79 The MWC also has an interest where the adult's incapacity is due to mental disorder, and the complainer can contact the Commission direct, although the Commission will only investigate a complaint if it is not satisfied with the outcome of a local authority investigation or the local authority has not carried out any or an insufficient investigation.
6.80 The local authority will contact you about any complaint received and ask you for your version of the facts. If you have applied the principles correctly, have taken advice, have kept relevant documents such as correspondence, have co-operated with supervision and have recorded your decisions and actions on a file as recommended above, you should have nothing to fear from such an investigation.
6.81 You will need to produce similar information should the MWC have cause to investigate or reinvestigate the complaint.
Possible court proceedings in the event of a complaint
6.82 A person who is dissatisfied with your actions as welfare guardian also has recourse to the sheriff. An application to the sheriff may be made by any person claiming an interest in the property, financial affairs or personal welfare of the adult. You can also apply to the sheriff for directions under section 3(3).
6.83 The sheriff may dismiss such an application from a person challenging your actions, or may give the applicant or yourself directions. Everything will depend on the case which is put to the sheriff and his or her view of what is required by the principles in the situation which has been set out.
6.84 In extreme cases the sheriff can revoke your powers or some of them.
COSTS OF ACTING AS A WELFARE GUARDIAN
6.85 If you are a guardian with powers over personal welfare only, you may be able to avoid any personal outlays by ensuring that the adult pays personally for everything that is necessary for his or her welfare. If the adult is not capable of doing so, there may be someone with powers over the adult's property and finances who can authorise expenditure from the adult's estate on his or her welfare needs and you will need to liaise regularly with that person.
6.86 If you are a guardian with powers over personal welfare only, and you do incur expenditure from your own resources, you will be entitled to reimbursement of your out of pocket expenses from the adult's estate. To claim reimbursement you will have to present an account to the Public Guardian, along with proofs of purchase. You should contact the Public Guardian as soon as you are appointed to make sure that you know how to deal with your out of pocket expenses.
6.87 A welfare guardian is not normally entitled to remuneration. However you may be able to make a case to the sheriff for remuneration when you are appointed. For example, if you are sacrificing employment opportunities in order to act as someone's guardian, this could be a reason for awarding remuneration.
6.88 A local authority guardian is not entitled to any remuneration. The local authority may not charge an adult on guardianship for any goods or services that would be provided free of charge to a client who was not subject to guardianship.
Forfeiture of remuneration
6.89 Where a guardian is in breach of any duty of care, fiduciary duty or obligation imposed by the Act, the sheriff may, under section 69, order forfeiture of the guardian's remuneration. However, section 82 provides that no liability shall be incurred by a guardian (or other proxy) for any breach of duty of care or fiduciary duty owed to the adult if the guardian has acted reasonably and in good faith and in accordance with the principles; or has failed to act, and that failure was reasonable and in good faith and in accordance with the principles.
SUPERVISION BY THE LOCAL AUTHORITY
6.90 The Act requires local authorities to supervise welfare guardians.
Purposes of supervision
- To provide advice, guidance and support to guardians.
- To assess the impact of any significant changes in circumstances on the adult's welfare and how you are managing guardianship.
- To identify whether a guardianship order continues to be necessary at the end of the period for which it has been made and should be renewed.
- To confirm that the criteria for your suitability to be appointed as guardian at section 59 of the Act are still met. Supervision should be used to check, for example, that you are maintaining satisfactory personal contact with the adult, through visits, phone calls or other means appropriate to the adult's circumstances.
- To identify if an application should be made to the sheriff for a joint or substitute guardian to be appointed.
- To identify if an application should be made to the sheriff for your powers to be varied, or for any ancillary order, for example imposing conditions or restrictions on the guardianship order, to be imposed or varied.
Directions to a guardian
6.91 The Act does not allow a local authority to issue a direction to a welfare guardian, as was possible in relation to guardians under the 1984 Act. Such a direction to a guardian can only be made by the sheriff under section 3(3) of the Act, on an application by anyone, including the adult, claiming an interest in the adult's affairs. This need not be made at the time of initial application for guardianship but could be made at a later date. A local authority would be entitled to apply to the sheriff for such a direction if it considered that supervision was not sufficient to ensure that you were carrying out your functions in a satisfactory way; or if you were encountering significant obstacles such as conflicts of interest. However the purpose of supervision and direction is not to inhibit proper and independent exercise of your functions as guardian and you should appropriately advocate the adult's need for support and/or services from the local authority, even where this might put you in conflict at times with relevant departments of the local authority.
Supervision of local authority guardians (see Code of Practice for Local Authorities)
6.92 In many cases, the CSWO will be appointed welfare guardian. The Act does not exempt the local authority guardian from the requirements for supervision. If you are a social work officer exercising the day to day functions of guardianship, in a case where the CSWO has been appointed, your supervisor will be the senior officer to whom you normally report.
Supervision of non-local authority guardians
6.93 If you are an individual acting as guardian, you will be supervised by an officer of the local authority for the area in which the adult resides. That local authority may wish to use the good offices of your home authority (if different) to carry out certain specific tasks such as visiting you as guardian.
6.94 The Adults with Incapacity (Supervision of Welfare Guardians etc by Local Authorities) (Scotland) Regulations 2002 made under section 10(3) as amended by the Adults with Incapacity (Supervision of Welfare Guardians etc by Local Authorities) (Scotland) Amendment Regulations 2005 specify the form that supervision of welfare guardians should take. The following will normally be required.
6.95 The local authority must arrange for every adult who is subject to welfare guardianship to be visited from time to time. The initial visit must take place within 3 months of the appointment and thereafter at intervals of not more than 6 months. If the adult's circumstances are such that it is not possible for the local authority to visit within this period, the authority has to visit at a time as close to the time the visit should have taken place as the adult's circumstances allow. Where the guardian is not the CSWO, there is a requirement for the guardian to be visited within 3 months of the appointment and thereafter at intervals of not more than 6 months. You can therefore expect that both the adult, and yourself, will be visited at least every 6 months after the initial visit; not necessarily together.
6.96 Specific purposes of visiting are to enable the local authority to discuss with you the adult's current circumstances, any concerns you might have, how the powers of guardianship are being used, whether it continues to be necessary and to inspect the records that welfare guardians are required to keep under the Act. No format is prescribed for records, but guidance has been given above on what would be good practice.
6.97 The local authority may arrange or contract with another body to carry out supervisory visits. As noted above, the local authority might ask another authority to visit on its behalf, for example where you do not live in the same local government area as the adult. The local authority must make it clear to you who is conducting supervisory visits on its behalf.
6.98 If appropriate, visits to the adult and the guardian may be combined, although the local authority will sometimes carry out separate visits, for example where there appears to be conflict between the guardian and the adult.
6.99 Visits will normally be made by appointment with you or the adult, as the case may be, but in certain circumstances, it might be appropriate for an unannounced visit to be made, for example to gain a view of the adult's living circumstances. This is a matter for each authority to determine, within its own procedures. In cases where there is regular social work contact as part of care management, visits may be linked to the normal review cycle.
6.100 The local authority supervisor will make a record of the visit and you should request a copy of this. This record will be the basis for future local authority action. You may wish to keep your own notes of anything discussed during a visit. If there is a dispute between yourself and the local authority supervisor it will be helpful if you have both recorded what happened at any visit.
In addition to the local authority supervision responsibilities, the MWC also has responsibility under the Act to exercise protective functions in respect of individuals subject to Intervention or Guardianship Order relating to personal welfare. The MWC scrutinises all Intervention and Guardianship applications and where not visiting directly corresponds with the adult and/or Guardian to explain its role and to ask that the guardian advise it on any change of circumstances or concerns they may have. Visiting the adult is at the discretion of the MWC. The MWC would also investigate any complaints relating to the exercise of functions relating to the personal welfare of the adult similar to those requirements of the local authority. The MWC expects that the local authority respond to complaints in the first instance.
Provision of information
6.101 The Regulations require non-local authority welfare guardians to provide certain reports and other information to the local authority. These are any report or specific piece of information about the personal welfare of the adult or the exercise by the guardian of their personal welfare functions, as the authority may from time to time reasonably require.
6.102 You are likely to be asked to report significant accidents or incidents affecting the adult. These might include, for example, accidents resulting in significant injury, incidents that could have resulted in serious injury, or episodes of challenging behaviour by the adult resulting in harm to him or herself or to others. Accidents to the adult's property or theft or loss should also be reported, as this may have an impact on the adult's welfare either material or psychological. 'Accidents and incidents' are not defined in the Regulations. It is envisaged that guidance will be given by each local authority to guardians on what reporting is required.
6.103 The principles in section 1 must be observed by anyone exercising functions under the Act and these apply as much to supervision by the local authority as to the exercise by guardians of their functions. It would be good practice, and be in line with the principles for the local authority to consult the adult regularly about how you perform your functions. The local authority will of course be fully aware of whether there has been conflict involved either in your appointment or in the exercise of your functions and if the adult is not satisfied with you as guardian, will look below the surface of this. It may be that the nature of the adult's incapacity is the cause of the dissatisfaction rather than anything that you have decided or done. Your local authority supervisor will be checking that you have applied the principles properly and taking account of the adult's wishes and feelings is only one principle which must be balanced against the others.
6.104 The adult's nearest relative, primary carer (normally a family member or friend), named person, care manager or any other person whom the sheriff has directed to be consulted about the adult's personal welfare will also be given a regular opportunity to give their views about how you are exercising your functions. Again, your local authority supervisor will be aware of any past or present conflicts and will be checking to see that you have applied the principles properly - consultation with relevant others being only one principle which must be balanced against the others.