Adults with incapacity: code of practice for local authorities

Chapter 2 Functions of local authorities under the 2000 Act

SUMMARY OF LOCAL AUTHORITIES FUNCTIONS (BY SECTION OF THE 2000 ACT)

2.1 The 2000 Act confers a wide range of functions on local authorities. These functions are summarised as follows:

Under section 10

To supervise guardians and attorneys

To supervise a guardian appointed with functions relating to the personal welfare of an adult in the exercise of those functions. To supervise a welfare attorney where ordered to do so by the sheriff. The supervisory functions of local authorities under the 2000 Act are dealt with in detail in chapter 8 of this code.

To investigate circumstances where personal welfare of adult seems to be at risk

To investigate any circumstances made known to them in which the personal welfare of an adult seems to be at risk. This is an express statutory protective function for local authorities. (See chapter 9.)

To provide information and advice to proxies with welfare powers

The local authority has a general duty to provide information and advice to those exercising welfare functions under the 2000 Act, i.e. attorneys, guardians and interveners, when requested to do so. Although not specifically required by the 2000 Act it would be good practice for the local authority to provide information and advice (non-legal) to those who are not yet exercising such functions but are considering doing so either because an adult is already losing decision-making capacity; or appears to have lost the ability to make some or all decisions for him/herself or has never had full capacity to make decisions.

To investigate complaints in relation to those exercising welfare powers

To receive and investigate any complaints about the exercise of functions relating to the personal welfare of an adult made in relation to welfare attorneys, guardians or persons authorised under intervention orders. The investigation of complaints is a matter for local procedure. Special arrangements will be required for the separation of functions where it is an officer of the local authority who is the subject of the complaint or is the complainer. The investigative functions of local authorities under the 2000 Act are dealt with in detail in chapter 9 of this code.

To consult Public Guardian and MWC

To consult the Public Guardian and the MWC on cases or matters relating to the exercise of functions under the 2000 Act in which there is, or appears to be, a common interest.

Under section 53 of the 2000 Act

To apply for an intervention order where necessary and no-one else is doing so.

Where it appears to the local authority that an intervention order is necessary for the protection of the property, financial affairs or personal welfare of an adult, and that no application has been made or is likely to be made for such an order, the local authority is obliged to apply for an intervention order.

The local authority's duty to apply for an intervention order is dealt with in detail in chapter 6 of this code.

Under section 57(2)

To apply for guardianship order where no other means would be sufficient to safeguard the adult's interests - where it appears to a local authority that:

• an adult is incapable in relation to decisions about, or of acting to safeguard or promote his/her interests in, his/her property, financial affairs or personal welfare, and is likely to continue to be so incapable; and
• no other means provided by the 2000 Act would be sufficient to enable these interests to be safeguarded or promoted; and
• no application has been made or is likely to be made for a guardianship order; and
• a guardianship order is necessary for the protection of the property, financial affairs or personal welfare of the adult,

the local authority must apply for a guardianship order. Guidance on applying for and operating a guardianship order is provided in chapter 6 of this code.

'Other means' includes consideration of all relevant protective measures, statutory and non-statutory (see chapter 4).

Under section 57(3)

To provide reports to the sheriff relevant to applications for intervention orders or guardianship orders relating to personal welfare

The requirements for reports to be lodged in the court in relation to applications for intervention orders and guardianship are the same. Where the application relates to the welfare of a person whose impaired capacity is due to a mental disorder, the reports must include a report in prescribed form from the MHO. But where the person's welfare is in jeopardy because of his/her inability to communicate, the report must be made by the CSWO, who can delegate to a social work officer.

The function of the local authorities in providing relevant reports are dealt with in chapter 6 (where the local authority makes the application) and chapter 7 in relation to private applications. In particular, where someone other than the local authority applies for welfare guardianship, he/she must give notice of the application to the CSWO who must arrange for a report to the applicant within 21 days of the notice. This time limit is important.

Under section 59(1) and (2)

To act as welfare guardian where no-one else is applying to do so:

• where the guardianship order is to relate only to the personal welfare of the adult, the CSWO of the local authority may be appointed as guardian;
• where the guardianship order is to relate to the property and financial affairs and to the personal welfare of the adult and joint guardians are to be appointed, the CSWO of the local authority may be appointed guardian in relation only to the personal welfare of the adult.

These provisions, together with the local authority's duty to apply for guardianship where no-one else is doing so, effectively place a duty on the CSWO to become guardian if no other means of safeguarding welfare is appropriate.

Good practice in carrying out the functions of welfare guardian is set out in the chapter 6.

Under section 73(3)

To recall the personal welfare powers of a guardian

The local authority may recall the personal welfare powers of a guardian, at their own instance or on the application of any person claiming an interest, if it appears that:

• the grounds for appointment of a guardian with such powers are no longer fulfilled; or
• the interests of the adult in his or her personal welfare can be satisfactorily safeguarded; or
• promoted otherwise than by guardianship.

The local authority's functions in relation to recall of guardianship are set out in chapter 6 of this code.

Under section 76

To arrange for transfers of guardianship where adult changes habitual residence

Where the CSWO of a particular local authority is the guardian, and an adult changes habitual residence to the area of another local authority, the CSWO of the first local authority must notify the CSWO of the second local authority. The CSWO of the second local authority becomes guardian on receipt of the notification and must make the appropriate notifications.

JURISDICTION OF LOCAL AUTHORITIES UNDER THE 2000 ACT

2.2 The jurisdiction of the local authority under the 2000 Act covers the adults habitually resident in the area of that local authority. The only exception to this is the duty under section 10(1) (d) to investigate circumstances in which the welfare of an adult appears to be at risk. This applies to any adult present in the local authority's area.

In such a case, current local rules or guidance should be followed, bearing in mind that the duty to provide a service precedes the need to obtain payment. If the adult is normally resident in the area of another local authority it will be essential for the local authority dealing with the case to contact and liaise with that authority.

2.3 These functions build on the general welfare and protective function of local authorities. They provide a set of tools by which welfare and protective functions can be more systematically and successfully carried out where mental incapacity is an issue in a particular case.