Adults with incapacity: code of practice for local authorities

Chapter 7 Responsibilities of local authorities in relation to private applications and appointments

INFORMATION AND SUPPORT FOR CARERS

7.1 The question of when the 2000 Act should be invoked applies to private individuals as well as to local authorities. Whilst it is not a duty under the 2000 Act, local authority officers should be ready to provide information and advice (non-legal) about the 2000 Act in response to requests. This will be especially important where a carer is considering applying for an intervention or guardianship order with powers covering personal welfare. However, carers should also be recommended to seek independent advice, for example, from a local citizen's advice bureau, or specialist voluntary organisation.

7.2 Where a carer seeks information and advice and there has been no previous contact with social work it may be appropriate to offer a needs assessment for the person as well as an assessment of the carer's needs. The Community Care and Health (Scotland) Act 2002 amends the 1968 Act to give carers a right to have his or her care needs assessed by the local authority. It would be good practice to bring this assessment right to the notice of any carer providing a substantial amount of care. Where it is known that a family is thinking of applying for guardianship it would be good practice to recommend a case conference.

7.3 Local authorities have a duty to provide information and advice to private individuals who have been appointed as a guardian, intervener or attorney with welfare powers.

Information and advice for parents

7.4 Transitional arrangements for a young person with a mental disorder such as a learning disability, autism syndrome or acquired head injury should consider whether he/she would benefit from any of the provisions of the 2000 Act. The young person and his/her parents should be fully informed and involved in discussions. If a guardianship order is appropriate, it may be applied for in the 3 months prior to a person's sixteenth birthday. This is to avoid any gap in authority for a parent to act on behalf of the young person to make certain types of decision for him/herself. (For further details see Part 6 Code of Practice). The DVD 'Making decisions - your rights' produced by the Scottish Government is available in a version for people with a learning disability and their carers. It explains in simple terms how the 2000 Act can help and sets out the rights of the individual under the 2000 Act. The easy-read leaflet 'It's your decision' is also available - see Annex 4 for information on accessing Scottish Government publications.

Involving carers in the assessment and review process

7.5 Where the person is known to services, health or social care professionals may be aware of the changing needs of the person and call for a review. The care manager should, at an early stage in the process, involve carers and others with an interest in the welfare of the adult, and take their views into account (see chapter 4). Where the views of the person are at odds with a carer's views, the care manager's skills will be needed to reconcile different interests. Where the person needs support to express his/her views and wishes, it may be appropriate to seek the support of an independent advocate. As a result of the assessment process, the local authority may advise that an application for an order is necessary or that arrangements for services can be authorised under the 1968 Act (see chapter 4).

Where an order is needed - explaining what is involved

7.6 Where an application for an order under the 2000 Act is required, any person claiming an interest in the adult may apply to the sheriff court and nominate him/herself to be the guardian or intervener. Private individuals have the choice of making an application for joint guardianship, i.e. one or more persons may apply to be appointed. An order with both welfare and financial powers may be applied for, depending on the needs of the individual. Private individuals can make the application themselves or engage a solicitor. The Scottish Government publication 'Guardianship and Intervention Orders - making an application. A guide for carers' provides information on the process. Information about access to legal aid should be given - http://www.scotland.gov.uk/Topics/Justice/Civil/awi/.

7.7 In explaining the application process for an order, the carer should also be informed of the local authority's duty to provide the sheriff with a 'suitability' report on anyone proposed as a welfare guardian or intervener. Where it is an application by a private individual, the mental health/social work officer responsible is required to interview the applicant as well as the adult and state an opinion as to the appropriateness of the order sought, as well as the suitability of the proposed guardian. The person nominated in the application is allowed to see that part of the 'suitability' report which deals with his/her suitability. In addition the proposed guardian should be informed that when a welfare guardianship order is granted, the local authority has an ongoing duty to supervise the guardian or guardians (where more than one has been appointed), and to investigate any complaints that may arise about the way in which the guardianship is being operated.

7.8 If there is no carer or other person with an interest to make an application, which the local authority has assessed as being required, then the local authority has a duty to apply under section 57 of the 2000 Act (see c hapter 6).

7.9 In certain circumstances, for example, where the local authority has initiated the action, it may be appropriate for the local authority to make the application and to ask relatives (or friends as appropriate) if they wish to be nominated as guardian. The 2000 Act allows this to happen. However the local authority can only go forward with the agreement of the individual/s who must understand and be able to fulfil the duties inherent in the role. There should be no undue pressure on the carer/s to make the application.

7.10 The reasons why a carer may not wish to be appointed as guardian may be many and varied, and again, he/she should not be put under undue pressure to take on this role.

7.11 However, where there is agreement that guardianship is needed and the carer or relevant others have given a commitment to making an application, a time-scale for making the application should be agreed at the same time.

Dealing with delays

7.12 Where a private individual delays making the agreed application it will be important to find out why. If there appears to be no good reason it may be helpful for the local care manager to write to the prospective applicant giving him/her a date (for example, two weeks hence) to confirm in writing what arrangements have been made to progress the application (requesting solicitor's name etc); also pointing out that if no confirmation is forthcoming an application will be made by the local authority.

The application process - private individuals

Notification to CSWO of intention to apply

7.13 Under section 57(4), where an applicant claims an interest in the personal welfare of the adult, and is not the local authority, he/she shall give notice to the CSWO of his/her intention to make an application under section 57, and the report by the MHO or as the case may be, the CSWO, must be prepared within 21 days of receiving this notice.

7.14 Because the time scale for submitting the report is short, it is essential that notification of the application is routed to the responsible officer as quickly as possible and internal instructions may help. The legal departments of some local authorities have found it helpful to write to local solicitors notifying them about best way to proceed and supplying a clear first line of contact within the authority (however this may not be feasible for larger authorities).

REPORTS ON THE APPROPRIATENESS OF THE ORDER SOUGHT AND THE SUITABILITY OF THE INDIVIDUAL NOMINATED TO EXERCISE GUARDIANSHIP OR INTERVENTION ORDER

Under section 57(3)

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

7.15 Under the 2000 Act MHOs are given specific responsibility for reporting to the courts based on an interview and assessment of the adult carried out not more than 30 days before the lodging of the application for an intervention order or for welfare guardianship. This time limit is important (see chapter 5 for details). Where the adult's capacity to act or make the decision in hand is due to an inability to communicate due to a physical disability then the responsibility for providing a report lies with the CSWO, who can delegate to a social work officer. The requirements for reports to be lodged with the court in relation to applications for intervention orders and guardianship orders are the same.

The suitability report should:

• assess the appropriateness of the order applied for and the powers sought to meeting the needs of the person;
• assess the suitability of the applicant in relation to the powers sought.

USING THE PRINCIPLES TO ASSESS THE APPROPRIATENESS OF THE ORDER APPLIED FOR

7.16 The officer must take into account the past wishes and feelings of the person so far as they can be ascertained. Local authority files may record the past wishes of the person from earlier casework contacts. If not, it will be essential to try to ascertain the person's past wishes and feelings from those who know him/her. The officer should however guard against taking at face value everything that relatives or carers say about the adult's past wishes and feelings, in case these are being misrepresented.

7.17 In relation to every particular intervention that the officer is recommending he/she will also need to take account of the present wishes and feelings of the adult so far as they can be ascertained. In order to do this the officer may find it helpful to refer to the guide on communicating with the adult (see Annex 2). Non verbal signs and signals, such as whether the adult seems settled and happy in particular settings, such as a day centre, or residential home, should also be taken into account. Where a placement is being considered, the person should where possible be taken on a visit, so that his/her wishes and feelings about the placement can be ascertained at first hand.

7.18 The officer will 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, primary carer and named person, 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. The officer should take into account these views in the course of formulating the recommendations.

7.19 A welfare guardian, has responsibility for encouraging the person to exercise residual capacity and acquire skills where possible. The report should show how the recommendations would enable this to take place.

ASSESSING THE SUITABILITY OF THE APPLICANT

7.20 Section 59(3) and (4) set out criteria for determining the suitability of a proposed individual to be appointed guardian, these issues should be addressed in the report to the sheriff, i.e.:

• the individual is aware of the adult's circumstances and condition and of the needs arising from such circumstances and condition;
• the individual is aware of the functions of a guardian [this would include the ability of the individual to understand and apply the principles properly];
• accessibility of the applicant to the adult and to his primary carer;
• the ability of the individual to carry out the functions of guardian [this would include such issues as professional competence];
• any likely conflict of interest between the adult and the individual;
• any undue concentration of power which is likely to arise in the individual over the adult;
• any adverse effects which the appointment of the nominated person would have on the interests of the adult,

(and such other matters as appear to the sheriff to be appropriate).

7.21 It will be important for the officer preparing the suitability report to have discussed any potential conflict with the person seeking authorisation. The views of significant others should also be sought on the suitability of the applicant.

7.22 The officer writing the suitability report should:

• consult the adult, to find out, if possible whether the intervention is consistent with his or her wishes and feelings and assess whether there is any question of undue influence by the person seeking authorisation;
• check that the person to be nominated is acceptable to the adult and those concerned with his or her personal welfare. This will ensure that there are no surprises if the application is opposed by the adult or others;
• check that the person to be nominated in the application is willing to be nominated in the application for an intervention order or as welfare guardian;
• consult others with an interest in the adult's welfare about what they would think best for the adult, making sure that they are not influenced by conflicts of interest of their own.

This is essential information for the officer who will write the report on the appropriateness of the order sought and the suitability of the person nominated in the application.

DEALING WITH CONFLICT OF INTEREST

7.23 The local authority should be aware of, and should be ready to address in reports, any possible conflict of interest. Conflicts of interest will arise because of the close relationships that are likely to exist between the person and those seeking to intervene in his/her affairs; and because of the role of the local authority in both safeguarding welfare and providing services. The key to dealing with them is to apply the principles properly, and where appropriate to seek an independent view on the proper way forward, possibly in the form of orders, provisions or directions from the sheriff under section 3 of the 2000 Act. Conflict of interest and undue concentration of power are not to be taken to arise by reason only of the individual being a close relative of, or a person residing with, the adult.

Conflict of interest between the adult and the person seeking authorisation

7.24 Where guardianship is being considered, there may be a conflict of interest between the adult and the proposed guardian. If the guardian is someone close to the adult in another capacity such as relative, or carer this could create a conflict of interest between the applicant's personal interests and the guardian's fiduciary duty to the adult. The guardian may for example stand to inherit money or property under the adult's will but the action required would involve expenditure that would erode this inheritance. The local authority is obliged to report on the suitability of the prospective applicant. It will be important therefore for the author of the report to have discussed this potential conflict with the proposed guardian and others involved so as to ensure that the guardian will indeed act in the person's interests.

7.25 It is quite reasonable and proper for a guardian sometimes to take action which would benefit both him/herself and the adult. For example, if the adult is elderly and frail, and his or her spouse (also elderly and frail) is the guardian and decides that both shall move into sheltered accommodation, this is likely to be of benefit to both.

7.26 The local authority has a duty to ensure that even where the person seeking authorisation will incidentally benefit, the application still complies with the principles.

7.27 The carer will often be best placed to be guardian, despite potential conflict of interest, because the carer knows the adult best and is well placed to determine the adult's benefit and take full account of his or her wishes and feelings.

7.28 The author of the report should also interview others with an interest in the adult's welfare about what they would think best for the adult, making sure that they are not influenced by conflicts of interest of their own.

Conflict between different persons with an interest in the adult's affairs

7.29 The local authority may become aware of the likelihood of conflict between the applicant and others with an interest in the adult's affairs, and may be approached by different parties to support their interests in the matter. In reporting to the court on the suitability of the applicant and the appropriateness of the order sought, the local authority may need to address the issue of opposition by others and reach a conclusion on whether to support the applicant.

7.30 As indicated above, the proper approach will lie in application of the principles to the conflict in question.

Conflict between the local authority and others with an interest in the adult's affairs

7.31 Sometimes the local authority will take one view of the adult's needs, but others with an interest will take a different view. This could arise where, for example, the local authority believes that the relatives do not have the skills to exercise guardianship but they believe they can manage, or where the authority believes that the intentions of the applicant will not be to the benefit of the adult. It could also arise where the local authority believes that one person would be better placed to become guardian than another person.

7.32 The report writer should assess whether objectors have a realistic alternative to the local authority's own proposals, irrespective of whether they have a vested interest in the adult's affairs. For example, if there are relatives who wish to care for the adult at home, it should be clear after proper investigation whether that is feasible and the least intervention necessary to benefit the adult.

7.33 If there is any suspicion that relatives or carers would, for example, be tempted to use their powers for their own benefit (including financial benefit) rather than that of the adult, this should be highlighted in the report, and reasons be given. Similarly if there is a suspicion that relatives or carers would use powers under the 2000 Act in an over-controlling way so as to restrict the freedom of the adult.

Possible courses of action

7.34 It may be that after consideration of all these factors the officer wishes to write an adverse report on the application. It is essential to discuss with a team leader, supervisor or senior social work officer any proposal to write an adverse report and to plan what alternative course of action the local authority might take to protect and safeguard the adult's interests.

If the officer is in doubt about the propriety of the order, or there is an expectation of challenge by other family members, there are various options open to the applicant or the local authority.

These include:

• applying to appear at the court to speak to concerns within the report;
• advising the sheriff to appoint a safeguarder or to make consequential or ancillary orders, or provisions or directions under section 3 of the 2000 Act;

For example, the local authority could ask the sheriff to order local authority supervision from the outset of the person authorised under the intervention order; or could suggest that limits be placed on the powers conferred under the order, which cannot be exceeded without some further supervisory or judicial procedure:

• recommending to the sheriff an alternative guardian;
• asking an independent solicitor to represent the interests of the adult in discussing the matter with the applicant and the local authority. Legal aid is available where the application is for welfare powers or a mix of welfare and financial powers;
• involving an independent advocate to support the adult to communicate his/her views. An independent advocate has a right to be heard by the sheriff;
• consulting the Public Guardian, where property and financial affairs are concerned;
• consulting the MWC where personal welfare matters are concerned.

7.35 In the last resort it may be necessary for the report by the MHO or the CSWO to oppose the application for guardianship by an individual and apply instead for the chief social work officer to be appointed. Where this is the case the MHO should notify the sheriff clerk of his/her intentions to ensure that the sheriff is aware and calls him/her to speak to any concerns identified within the report.

Consider need for additional safeguards - Police checks

7.36 Local procedures may prescribe, in certain circumstances, a check on whether the person nominated has any relevant criminal convictions.

Access to the report

7.37 Under Circular SWSI [1]/2000 Data Protection Act 1998: Guidance for Social Work Agencies, the person nominated in the application has a right of access to that part of the report which deals with his or her suitability.

Action on completion of the report

7.38 A report which contemplates legal action by the local authority, such as:

• an application for directions to be given by the sheriff under section 3(3) of the 2000 Act,

should be copied to the legal department to ensure necessary documentation for an application to court.

Reporting - time limits

7.39 A report by the MHO (or where incapacity is due to inability to communicate only, the chief social work officer) must be prepared within 21 days of the date of the notice of the forthcoming application.

7.40 This deadline confirms the desirability of identifying the need for an order through assessment and care management procedures, and agreeing with others involved who should make the application and who should be nominated in the order.

Applications relating only to financial or property matters

7.41 The local authority has no responsibility to provide a suitability report where an application for an order with financial powers only is being made by an individual.

ONCE THE APPLICATION IS GRANTED

7.42 Once an application for an order is granted, the sheriff clerk will send a copy to the Public Guardian who will register the particulars and notify the adult (unless the court has directed notification not to be given under section 11), the local authority and the MWC (where the adult's incapacity is a result of mental disorder). The person authorised under the order may then take the decision or action authorised in the order.

7.43 The local authority should ensure that the notification is entered into the person's case file.

SUPERVISION OF PRIVATE WELFARE GUARDIANS

7.44 Local authorities have a duty to supervise private welfare guardians (see chapter 8 for details).