Adults with incapacity: code of practice for local authorities

Chapter 5 Intervention orders and guardianship - an overview

WHAT ARE INTERVENTION AND GUARDIANSHIP ORDERS?

5.1 Intervention and guardianship orders provide legal authority for someone to make decisions and to act on behalf of a person with impaired capacity, in order to safeguard and promote his or her interests. The powers granted under an order may relate to the person's welfare, health, money or property. Anyone with an interest in the person - a carer, family member, friend including the local authority, can apply to the sheriff court to become a welfare and/or financial guardian or intervener. For full details see the Code of Practice for persons authorised under intervention orders and guardians.

Intervention orders

5.2 Intervention orders can be used where the need for action is time-limited or to deal with one-off decisions or single issue concerning the adult's property, finance or personal welfare. Local authorities can be financial interveners where there is an assessed need and there is no one else to act.

Section 53(5) provides that an intervention order may:

(a) direct the taking of any action specified in the order;

(b) authorise the person nominated in the application to take such action or make such decision in relation to the property, financial affairs or personal welfare of the adult as specified in the order.

An intervention order could be suitable for:

• signing a legal document such as a tenancy agreement; or termination of a tenancy agreement;
• selling a property and invest net proceeds in adult's account;
• freezing an adult's assets or funds in order to protect them while suspicions of exploitation are investigated by the Public Guardian;
• buying a home more suitable to the adult's needs;
• selling the adult's home (but the welfare aspects of moving the adult to different accommodation would be better dealt with through welfare guardianship);
• making a compensation claim and lodging funds in adult's account;
• dealing with the adult's interest in a legacy;
• taking legal action to protect the adult's interests;
• setting up a trust;
• selling moveable property held by the adult to obtain necessary income, e.g. jewellery, paintings, antiques;
• winding up the adult's business affairs;
• requiring the adult to attend hospital for specific medical treatment or assessment (for treatment other than for the mental disorder).

Special provisions where an intervention order covers acquisition or disposal of dwelling house

5.3 Section 53(6) makes special provision in relation to an intervention order which directs the acquisition of accommodation for, or the disposal of, any accommodation used for the time being as a dwelling house by, the adult. In such a case the consent of the Public Guardian is required with regard to consideration of the price paid or obtained before the accommodation is acquired or disposed of.

5.4 This provision will be particularly relevant in the case of a local authority which seeks to sell an adult's house in order to move the adult into residential accommodation; or acquire a specially adapted house for the adult in place of his or her current home. The intervention order could be used to deal with the property and financial aspects of the transaction.

Guardianship

5.5 Guardianship is likely to be more suitable where: there are one or more key issues to be dealt with; where the need for continuing intervention in the person's affairs is likely; and where flexibility is needed to respond to new situations without having to go back repeatedly to the court.

5.6 Section 57(1) of the 2000 Act provides that an application for a guardianship order may be made by: any person (including the adult him/herself) claiming an interest in the personal welfare, financial affairs or property of the adult; and the local authority.

5.7 The need for guardianship is governed by the grounds set out in section 58(1) of the 2000 Act. These are that:

• the adult is incapable in relation to decisions about, or of acting to safeguard or promote his/her interests in his or her property, financial affairs or personal welfare, and is likely to continue to be so incapable; and
• no other means provided by or under the 2000 Act would be sufficient to enable the person's interests in his/her property, financial affairs or personal welfare to be safeguarded or promoted.

5.8 An application for guardianship must specify the range of powers sought in the guardianship order. The principles must be satisfied for each power sought. The 2000 Act allows wide flexibility. Section 64(1) makes some general provisions. In particular, an order appointing a guardian may confer on him/her power to:

• deal with such particular matters in relation to the property, financial affairs or personal welfare of the adult as may be specified in the order;
• deal with all aspects of the personal welfare of the adult, or with such aspects as may be specified in the order;
• pursue or defend an action of declarator of nullity of marriage, or of divorce or separation in the name of the adult;
• manage the property or financial affairs of the adult, or such parts of them as may be specified in the order;
• authorise the adult to carry out such transactions or categories of transactions as the guardian may specify.

5.9 A guardian shall (unless prohibited by an order of the sheriff, and subject to any conditions or restrictions specified in such an order) have power by virtue of the appointment to act as the adult's legal representative in relation to any matter within the scope of the power conferred by the guardianship order.

5.10 A guardian with powers over property and financial affairs shall, subject to certain restrictions, be entitled to use the capital and income of the adult's estate for the purpose of purchasing assets, services or accommodation so as to enhance the adult's quality of life.

Matters which may not be authorised under an intervention or guardianship order

5.11 Under section 53(14) read with section 64(2), an intervention order or guardianship order may not authorise:

• placing the adult in hospital for the treatment of mental disorder against his or her will; or consent to any form of treatment under Part 5 of the 2000 Act or 2003 Act;
• consent to any form of medical treatment which is a prescribed exception to the general authority to treat under The Adults with Incapacity (Specified Medical Treatment) (Scotland) Regulations 2002 made under section 48(2) of the 2000 Act.

A guardian may not be given powers to consent to marriage on behalf of an adult or to make a will.

5.12 Other statutes or rules of law may preclude a guardian from exercising certain powers. For example the law on applications to acquire or renounce UK nationality require the adult him/herself to be of 'full capacity', which is normally interpreted as meaning that the adult must have some understanding of the meaning and effect of such an application.

WHICH POWERS TO SEEK - APPLYING THE PRINCIPLES

5.13 Applying the principles will help to clarify what powers are needed to meet the circumstances of the individual and the type of intervention under the 2000 Act that will be most appropriate. The principles should be applied to the framing of the order. In particular:

• The precise order sought should benefit the adult and there should be no reasonable way of achieving the benefit without the intervention. The applicant must be able to demonstrate that alternatives have been considered and give reasons for rejecting them.
• The precise order sought should be the least restrictive option in relation to the freedom of the adult, consistent with the purpose of the intervention.
• Account must be taken of the adult's past and present wishes and feelings. These must be ascertained in whatever way is appropriate and practicable in relation to the particular individual.
• The applicant must be able to explain the steps which have been taken to ascertain the past and present wishes and feelings of the person about the order being sought and any possible alternatives, and report what these are. The person will be able to challenge this aspect of the application, as will relatives or anyone else with an interest in the welfare of the individual.
• It will be particularly important to be clear about the sources of evidence for the person's past wishes and feelings. Where the adult cannot communicate present wishes and feelings despite every effort being made, undue reliance must not be placed on information from one or a restricted number of relatives and associates but, if possible, a spectrum of views should be obtained.
• Account must be taken of the views of the nearest relative, primary carer, named person and of any other proxy and anyone else the sheriff has directed should be consulted, and any other person having an interest in the welfare of the adult or the proposed intervention, in so far as it is reasonable and practicable to do so.
• The process of assessment and care management should already have indicated who needs to be consulted to comply with this principle. The application should make clear who the relevant people are - the forms for reports require them to be listed. The applicant will need to be ready to explain to the sheriff what views these consultees expressed and how they have been taken into account in determining the need for the application.
• A welfare guardian must support the individual to maintain his/her existing skills and encourage the development of new skills as far as possible. A person authorised under an intervention order does not under the principles have to encourage the adult to exercise or acquire skills, although it would be good practice to do so. An intervention order should not be sought if the adult would have been capable of taking the necessary decision or action with appropriate support.

Effect of intervention or guardianship order

5.14 Sections 53(9) and 67 respectively provide for the effect of the appointment and transactions of an intervener and guardian, i.e. that anything done under an order shall have the same effect as if done by the adult if he/she had the capacity to do so.

5.15 Under section 67(1), the adult shall have no legal capacity to enter into any transaction which is within the scope of the guardian's powers unless the guardian has authorised the adult to carry out the transaction. Where a third party is aware that the guardian has authorised the transaction it will not be void even if the adult lacked capacity in relation to the transaction. The adult's legal capacity in respect of matters not covered by the guardianship order is unaffected.

5.16 Under sections 31(4)(a) and 31(4)(b) the authority of a withdrawer of funds under part 3 comes to an end on the granting of an intervention or guardianship order relating to the funds or account in question.

5.17 Under section 46(1)(a) and section 46(1)(b) managers of an authorised establishment may not manage the funds of a resident under part 4 of the 2000 Act, if an intervention or guardianship order has been granted in relation to the same matter.

5.18 Under section 49(1) a medical practitioner may not exercise the general authority to treat conferred under section 47(2) if there is an outstanding application for an intervention or guardianship order in relation to the same matter; and under section 50(2) the general authority to treat does not apply where the consent of a guardian with powers in relation to the medical treatment could reasonably and practicably be obtained.

CIRCUMSTANCES IN WHICH A LOCAL AUTHORITY MAY RECOMMEND AN APPLICATION FOR AN INTERVENTION OR GUARDIANSHIP ORDER

Identification of need through assessment and care management

5.19 A local authority's involvement in applications for an intervention or guardianship order will normally stem from assessment and care management procedures and will normally relate to a personal welfare need which has been identified through those procedures. (In the case of a private application for an order dealing purely with property and financial matters there might be no local authority involvement since there is no need for a social work report to support such an application.) However, the circumstances involving the disposal of property almost always means there is money to manage and therefore both welfare and financial guardianship may be an appropriate recommendation. A financial intervention order may be appropriate, for example, to obtain information or to sign for or dispose of a tenancy.

5.20 It could also stem from the involvement of the offender team with the adult. In certain circumstances the court may make a guardianship order or an intervention order (see chapter 1 paragraph 1.39).

5.21 Where a review of the adult's personal welfare suggests that the adult's lack of capacity to deal with financial or property matters is impinging on his/her welfare, the local authority should consider whether a financial intervention under the 2000 Act would be desirable to deal with these financial or property matters. A local authority must seek the most appropriate means to deal with property and financial affairs where necessary and where no-one else is doing so (see section 53(3) of the 2000 Act).

MAKING AN APPLICATION FOR AN INTERVENTION OR GUARDIANSHIP ORDER

5.22 The process for applying for an intervention or guardianship order is identical. A 'summary application' (section 2(2) 2000 Act) is made to the sheriff court in the area where the adult resides accompanied by two medical reports and a 'suitability' report. Where the application requests welfare powers the local authority is required to provide a suitability report by an MHO (where the cause of incapacity relates to a mental disorder) or the CSWO where incapacity is due to a physical condition. Where the application is for financial powers only there is no duty on the local authority to provide a report for a private applicant. Reports required supporting application for an order:

• two medical reports based on an assessment of the capacity of the person in relation to the decision-making powers requested. Where incapacity is by reason of mental disorder one of the reports must be by a relevant medical practitioner, usually an approved medical practitioner under s22 of the 2003 Act. The other usually from the person's own general medical practitioner;
• a suitability report containing an opinion on:
  • the general appropriateness of the order sought in relation to the needs of the adult;
  • the suitability of the applicant.

Time-scale for reports

5.23 The summary application and accompanying reports must be lodged with the sheriff clerk within 30 days of the completion of the assessments. However, at the discretion of the sheriff, a medical report may be valid even where the medical examination of the adult has been carried out more than 30 days previously, provided that the sheriff is satisfied that there has been no change in circumstances relevant to the report since the examination was carried out.

Registration and notification of intervention and guardianship orders

5.24 Under sections 53(10) and 58(7)the sheriff clerk must send a copy of the order to the Public Guardian who must register it. The Public Guardian must notify the adult (unless the court has directed notification not to be given under section 11 of the 2000 Act) and the local authority of the order. He/she must also notify the MWC where the adult's incapacity is due to mental disorder (rather than inability to communicate) and the intervention order relates to the adult's personal welfare. The guardian (if necessary after finding caution or other form of security) may then start to exercise his/her powers.

Where the CSWO is guardian - see chapter 6 for details.

Liability and protection for third parties acting in good faith

5.25 For details see chapter 1 paragraph 1.15.

RECALL OR REMOVAL OF A GUARDIAN BY A SHERIFF

5.26 Under section 71 of the 2000 Act, the sheriff, on application by the adult subject to guardianship, the local authority or any other person claiming an interest in the adult's affairs may:

• replace a guardian by an individual or office holder nominated in the application if he/she is satisfied, in relation to the individual that she/she is suitable for appointment;
• remove a guardian from office if he/she is satisfied that:
  • there is a substitute guardian who is prepared to act as guardian; or
  • in the case where there is are joint guardians, that the remaining guardian/s are prepared to continue to act; or
• recall a guardianship order or other wise terminate a guardianship if he/she is satisfied that:
  • the grounds for the appointment of a guardian are no longer fulfilled; or
  • that the interests of the adult in his/her property, financial affairs or personal welfare can be satisfactorily safeguarded or promoted otherwise than by guardianship.