Adults with incapacity: code of practice for those authorised to access funds

Chapter 3 HOW TO APPLY TO ACCESS FUNDS

GETTING STARTED

3.1 How you start depends on what you already know about the adult's needs and finances. If you are the person's carer you may already have all the information you need to make an application. However, where this is not the case it will be important to gain an understanding of the adult's circumstances, in order to estimate his/her living costs and make appropriate arrangements for managing his/her finances.

Understanding of the adult's circumstances

3.2 Others involved with supporting the person may be able to assist. For example, a support worker or relative may be able to tell you about any special dietary needs the person may have, the cost of regular leisure activities or whether the person has any other special needs.

Gathering financial information if you don't already have it

3.3 It is important to find out as much as possible about any arrangements already in place for managing the adult's funds, and about his/her income and savings. This is so you can decide if the Access to Funds scheme is going to be suitable. If you decide to apply you will need details of any accounts which the person may have (he/she might have several accounts).

3.4 If the person does not have a bank or building society account you should try to find out from him or her how he or she has been managing and if someone has been helping him or her. Remembering the principles, it's important to involve the person as much as possible in what you are planning to do. If someone else has been assisting the adult with his/her money you should talk to that person about your plans and ask him or her for the information you need for the application.

Making an application

3.5 This section sets out what you need to do if you think that the Access to Funds scheme will be the most suitable method for managing the money of the person you want to support. The first section sets out the financial information and banking arrangements required. This is followed by information on what else you need to do to support your application before you send it to the OPG. Annex 2 provides a list of forms that may be relevant to your application.

Financial information and banking arrangements

3.6 To complete the access to funds application form you need information about any account or accounts held in the adult's name, how much money is in each account and about any regular income and outgoings. If you don't have this information you will need to make a preliminary application to the OPG to request a certificate authorising fundholders to provide you with this information.

Which is your starting point?

• You don't have enough information from the adult, relatives or other sources to make an application but believe that the adult holds funds in an account or accounts in his/her sole name, the first stage in the process for you will be to apply to the OPG for a certificate authorising fundholder(s) to provide you with the necessary information using form ATF(1). You can apply to find out:
• where accounts are held;
• the account details;
• how much is in each account;
• any other information needed to allow you to apply to access funds.

When the Public Guardian has issued a certificate of authority the fundholder will release the information as authorised in the certificate. Once you have the information you need, you can then decide if the access to funds scheme is suitable and if so move to the next stage of the process as shown below.

• If the adult does not have an account or has an account which is not suitable for the purpose (for example a 90 day notice account), you should apply to open an account in the name of the adult within your application for authority to access funds by completing Form ATF(2). At the same time it is possible to apply to open another account in the name of the adult. If approved the OPG will issue you with a certificate giving authority to open a suitable account (and another account if requested). In certain circumstances the Public Guardian may specify in the certificate the type of account to be opened, for example, an interest bearing account.
• Once opened you must provide the account details to the Public Guardian who will then provide you with a further certificate allowing you to open a designated account (chapter 2 provides information about this account) and commence accessing the funds as identified in your application.

• You know that the adult already has a suitable account in place, i.e. an account which allows regular withdrawals to be made (without incurring penalties), and you have enough information about his/her income and expenditure, you should move straight ahead with an application for authority to access funds. For this you need to complete Form ATF(2).

ESTIMATING THE BUDGET TO MEET THE ADULT'S NEEDS

Regular expenditure

3.7 On the application form ATF(2) you need to identify the estimated expenditure needed to pay for the person's daily living costs. This will, for example, include utility bills, food, clothing, leisure/educational/training activities, care home fees, etc. You may need to include costs relating to any dependants for whom the adult may have responsibility. In the application you need to estimate the sum you will need to have moved from the adult's 'current account' to the 'designated account' on a regular basis. The certificate from the Public Guardian authorises the bank/building society to move the specified sum by a certain date each month (or at what other period is authorised in the certificate).

Day to day living expenses which appear reasonable and appropriate do not require to be supported by evidence of bills, etc. However, the Public Guardian reserves the right to request further information or evidence when considering an application. The Public Guardian may, for example, request evidence if the sums requested appear particularly high.

Use of standing orders/direct debits

3.8 Standing orders/direct debits are the most convenient way of paying for regular ongoing costs, such as utility bills, care home costs, etc. and it provides a quick and easy way of showing that such payments have been made since they appear on the monthly bank/building society statement.

If there are existing standing orders/direct debits on an account, they may be continued. You must specify them in the appropriate part of the application form.

You may want to terminate existing arrangements or set them up on a different account. If so, detail what you want to do in the application form. If terminating existing arrangements consider how these payments will be made in the future.

Since the period of authority to Access Funds is normally set at 3 years there is a need to extend your planning over this period and to take account of inflation as far as possible. Guidance on how to do this is provided in form ATF(2).

Lump sums

3.9 The access to funds scheme also allows for one off-lump sums to be requested. These could be fairly substantial, for example, to pay long standing debts which have built up because no one has had authority to pay or it can also be requested to reimburse monies already spent by you or others on behalf of the adult. In such circumstances the Public Guardian will ask to see evidence in the form of an invoice requesting payment or evidence of what has been paid. Where the lump sum is requested to make a future purchase of a specialised piece of equipment, such as an orthopaedic chair, the applicant should enclose an estimate of the cost from the proposed supplier.

Section 2.1.5 of the application form ATF2 used for this purpose gives further information. If necessary a lump sum may be applied for at a later time using form ATF5 or again at renewal stage if required using form ATF6.

Arrangements for any less regular expenditure

3.10 The scheme allows for flexibility and the estimate may also include other expenditure which is less regular: for example, for a holiday or the cost of attending special events where these have been part of the person's life. This may involve assistance from a support worker or companion which will incur additional costs. These can also be included in the estimate. If it would be helpful you could discuss the matter with staff at the OPG.

Where the adult has several accounts

3.11 You may want to operate these to maximise benefit for the adult. If that is the case you are required to identify the accounts and specify what you need to do with each of them. Chapter 2 provides guidance on transferring funds and closure of accounts.

OTHER SUPPORT NEEDED FOR YOUR APPLICATION

3.12 In order to protect the person with incapacity the Public Guardian needs to be sure that:

• you are suitable to become a withdrawer; and
• the adult lacks capacity to manage his/her money; and
• Access to Funds is the most appropriate way to provide support.

This means that some checks are made:

• for individuals - with regard to your suitability to act as a withdrawer, the application form needs to be countersigned;
• for organisations - a countersignatory is not required but the organisation must have been accepted by the Public Guardian as a 'fit and proper' body to act;
• individuals and organisations need to give the names and addresses of other people with an interest in the financial affairs and welfare of the adult so that the Public Guardian can notify them about your application and allow them the opportunity to comment or object to the application;
• with regard to the adult's incapacity to manage his/her finances, a medical certificate must be included with the application.

Countersignatory

3.13 Applications by individuals must be countersigned by someone who:

• believes the information contained in the application form to be true; and believes that the applicant or any other person to be authorised as a withdrawer, is a fit and proper to deal with the adult's finances; and can comment on the suitability of the person/s to act as withdrawer;
• has known the applicant/persons applying to access funds for at least a year.

3.14 There are certain restrictions as to who can sign and these are clearly listed in the 'declaration of countersignatory' section of the appropriate application forms, for example, a relative or other person residing with the applicant or the adult cannot countersign the form.

Applications from individuals - must be received by the Public Guardian within 14 days of the form being countersigned.

Applications from organisations - must be received within 14 days of the applicant signing it.

If an application is received outwith the required period, the application cannot be processed and it will be returned to you.

The following forms completed by individual applicants require countersigning:

ATF(1) - Request for account information

ATF(2) - Access to Funds

ATF(3) - Appointment of joint withdrawers

ATF(4) - Appointment of reserve withdrawer

ATF(6) - -Renewal of authority where there are changes from the original application

ATF(7) - -Transition from guardianship where the former guardian is not to be the withdrawer

Medical certificate

3.15 You will need to contact a medical practitioner (for example the person's GP) to request an assessment of his/her capacity to manage his/her own money. A copy of the medical certificate ( SSI76) is issued with application forms ATF1 and ATF2.

A medical certificate in respect of the adult is required at the first point of entry to the scheme which will either be an application for authority to:

• provide information about funds, or
• open a new account and/or access the adult's funds.

The completed medical certificate in respect of the adult must accompany your first application to enter the scheme.

3.16 Medical certificates are also required in respect of an:

• application for renewal of authority; and
• application for transition from guardianship

but the Public Guardian may waive the need for these except where three years have passed since the last medical certificate was issued.

Please note that the medical assessment and dated certificate have to be recent but there is no specific time limit for the period between completion and submission (within a month would be acceptable).

3.17 The doctor may charge a fee for this medical examination. However, this is a cost which you may recover from the adult's funds as part of your application.

3.18 If you are unsure where the adult is registered with a GP then you should ask the Primary Care Department of the NHS Board of the area in which the adult lives. You will need to explain why you need to know, your relationship to the adult and provide as much information as possible about the adult to allow the request to be considered. Because of data protection legislation you may need to provide some form of documentation to support your request.

Others to be notified

3.19 The Public Guardian is required to send a copy of the application to a number of people as part of the process. You will therefore need to identify:

• the adult
• nearest relative (if known)
• the primary carer (if known)
• the named person (if known) ³ and
• any other person who may have an interest in the application.

This complies with principle 4 identified in chapter 1 (consultation with relevant others) which allows these individuals to make comment on the suitability of the application or indeed to object to it if they think it is inappropriate. Chapter 4 provides further information with regard to objections.

3.20 Where you are the applicant and also the nearest relative and primary carer for the person, the Public Guardian must send a copy of your application to the chief social work officer of the local authority in which the adult is resident.

Circumstances where the adult may not be notified

3.21 Where notification to an adult is likely to pose a serious risk to his/her health, two medical practitioners require to confirm this by assessing the adult and completing medical certificate SSI No 79 which can be found at the rear of application forms ATF(1) and ATF(2). It is not enough to say that the adult would simply not understand the application or that it would upset him/her.

3.22 On receipt of such a certificate the Public Guardian will not notify the person about the application. If it has already been completed on request for account information, another such certificate is not needed to accompany the next part of the application process.

If you are not sure if the above applies you should seek the advice of the person's doctor.

3.23 Remember the principles: if you have followed the principles you will have talked with all relevant people about your plans and involved them as far as possible. They don't need to understand the details of the scheme but to know that it is to ensure that the adult's funds are protected and used for his/her benefit.

Period of authority requested

3.24 The standard period of authority for an access to funds certificate is 3 years. However, the Public Guardian may reduce or extend the period of validity of a withdrawal certificate and an extension may be without limit of time. If you wish the period to be reduced or extended you will need to provide a valid reason for this, for example, you may wish to extend the period where the adult has a profound and complex learning disability which is unlikely to change over his/her lifetime, or a progressive neurological condition.

It should be noted that any variation to the content of a certificate does not affect the period of validity of the certificate.

Fees

3.25 The Public Guardian will charge a fee for processing an application to access funds. However, if this fee is shown as an outlay in the application form it may be reimbursed from the adult's estate once the application is approved.

3.26 Details of fees can be obtained by telephoning the office prior to lodging your application or from the website www.publicguardian-scotland.gov.uk

3.27 A fee is payable to the OPG in respect of an application to obtain information about an adult's financial position. If you then decide to apply for access to funds no fee is required provided the application is received within four months of the certificate issued allowing you to gain account information. If your entry point commences with an access to funds application a fee will be payable at the same time.

Lodging an application

3.28 Applications which require a countersignatory must be received by the Public Guardian within 14 days of the form being countersigned. If the application does not need to be countersigned it must be received within 14 days of completion by the applicant.

APPLYING TO MOVE FROM FINANCIAL GUARDIANSHIP TO ACCESS TO FUNDS

Reason for move

3.29 In some instances, where a financial guardian was appointed initially, the management requirements of the estate may have been reduced to such an extent over time that it can be adequately dealt with under the access to funds scheme. If the Public Guardian considers this appropriate then transition from guardianship to access to funds can go forward.

Recall of guardianship/application for access to funds

3.30 The transition process provides for an application to recall a financial guardianship and an application for access to funds to be made at the same time. However, access to funds cannot be authorised till the recall of guardianship has been approved. Equally a recall of guardianship will not be concluded until it is confirmed that the access to funds will be approved. This process ensures that the adult is not left vulnerable during the proposed change over.

3.31 Both applications are subject to intimation/notification to allow interested parties to have the opportunity to comment on/object to the proposed action. If satisfied with the applications, and there are no objections, the Public Guardian will issue the recall certificate and the withdrawer's certificate of authority at the same time.

Who can be withdrawer(s)?

3.32 The existing guardian and the proposed withdrawer may or may not be the same person. It could be that the financial guardian is a professional person who wishes to apply for recall and has arranged for a family member or some other person to apply under the access to funds scheme.

3.33 This transitional arrangement allows for joint withdrawers and a reserve withdrawer to be identified if required.

Arrangements for remuneration of the financial guardian

3.34 A financial guardian may be entitled to be remunerated from the adult's estate when his/her account is satisfactorily reviewed. Remuneration is based on the value of the moveable estate at the commencement of the final accounting period so it will be possible to calculate what this figure should be prior to applying for authority under access to funds. If you are the financial guardian, the staff at the OPG can assist and calculate this for you. You should then identify this as a debt due from the adult's estate in the section of the application form requesting a lump sum.