Adults with incapacity: code of practice for local authorities

Chapter 8 Supervision of non-local authority proxies

LEGAL BACKGROUND

8.1 The 2000 Act requires local authorities to supervise all guardians with personal welfare functions in the exercise of those functions.

8.2 Regulations made under sections 10(3)(a) and 86(2) of the 2000 Act stipulate the intervals within which a local authority must arrange visits, except for the initial visit, to an adult with incapacity and to a welfare guardian. The initial visit must be made within three months, with subsequent visits made at intervals of not more than of 6 months of each other. Additional visits may be made at the discretion of supervisor.

8.3 Local authorities are required to supervise welfare attorneys and persons authorised under intervention orders that relate to personal welfare matters, but only where ordered to do so by the sheriff.

8.4 An application to the sheriff to order supervision of a welfare attorney may be made by any person claiming an interest in the personal welfare of the adult (see section 20(1)). It will be the responsibility of the Public Guardian to notify the local authority of the order (section 20(3)(b)(iii)).

8.5 There is no specific provision to order supervision of a person authorised under an intervention order. However this may be done by the sheriff under his/her general powers and is envisaged under section 10(3)(b)(i) of the 2000 Act.

SUPERVISION OF PROXIES WITH JOINT FINANCIAL AND WELFARE POWERS

8.6 Guardians and those authorised under intervention orders with powers relating to property or financial affairs are routinely supervised under the 2000 Act by the Public Guardian. The Public Guardian may also be ordered under section 20(2)(a) of the 2000 Act to supervise continuing attorneys, that is those with powers relating to property or financial affairs. Many guardians and attorneys under the 2000 Act will have both financial and welfare powers. The local authority and the Public Guardian may therefore both be required to supervise the same individual. Alternatively, there may be supervision by each authority of two or more proxies to the same adult. In either set of circumstances, it will be essential for the OPG and local authority to liaise with each other over matters of common interest. For example, the authorities should liaise about plans for the sale of an adult's house linked to planning for the adult's future place of residence.

8.7 It will also be helpful for local authorities to put in place procedures for managing disputes between different proxies and between proxies and the local authority in exercise of its functions.

SUPERVISION OF PRIVATE WELFARE GUARDIANS

8.8 In many cases, the guardian will be a relative or carer of the adult. The guardian will not necessarily reside with the adult. It is possible that a private guardian will live in a different local authority area to the adult. The responsibility for supervision in this case lies with the adult's home local authority, although that local authority may wish to request the guardian's home authority to carry out certain specific tasks such as visiting the guardian.

8.9 Supervision is intended to ensure that proxies are carrying out their functions properly. It should focus specifically on potential problems that might require action by the local authority. Supervision of individual guardians should relate to the particular circumstances of that case within the context of general local authority guidance and procedures. Where joint welfare guardians have been appointed the local authority is expected to provide supervision for each person appointed.

8.10 Supervision of guardians with welfare powers should be routine, of help to the guardian and not over burdensome. Supervisors should ideally be staff who already know the guardian and adult.

SUPERVISION OF WELFARE ATTORNEYS

8.11 Attorneys, like guardians and others, have a duty to abide by the principles. If the local authority is concerned that an attorney with welfare powers is not acting to in accordance with the principles and disagrees with the proposed actions of the attorney, it can apply to the sheriff for a direction for the welfare attorney to be supervised. It is advisable to seek advice from the legal department. As a last resort, the local authority can apply for welfare guardianship itself. This may also be the necessary where the attorney either lacks the power or is having difficulty exercising the power e.g. to move their relative to a care home, because the adult is resisting.

The purposes of supervision of proxies by authorities are:

• To ensure generally that the proxy is exercising powers in such a way that person's interests are being safeguarded and promoted in line with the principles. This is important because the person is unlikely to be able to complain effectively if the proxy is not acting appropriately. The adult's interests are defined in the 2000 Act by the principles set out in section 1.
• To assess the impact of any significant changes in circumstances on the person's welfare and the management of guardianship.
• To identify whether a guardianship order continues to be necessary at the end of the period for which it has been made and whether it should be renewed, recalled or the powers varied. This should be the outcome of ongoing needs assessment and review. If changes are necessary then appropriate and timely action should be taken in advance of period for review by the court.
• To confirm that the criteria for suitability to be appointed as guardian at section 59 of the 2000 Act are still met. Supervision should be used to check, for example, that the guardian is 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 the guardian's powers to be varied, or for any ancillary order, for example imposing conditions or restrictions on the guardianship order, to be imposed or varied.
• To identify any potential need for the guardian to be replaced or removed, or the intervention order to be revoked, or the welfare attorney to be removed or have his or her powers modified.
• To identify if an application should be made for other orders under the 2000 Act about the exercise of their powers by proxies. For example the sheriff may order a welfare attorney to report to him or her under section 20(2)(d). The sheriff has general powers at section 3 to make consequential or ancillary orders or directions, impose conditions on orders granted, and call for further information.

ROLE OF THE MWC

8.12 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 their role and to ask that the guardian advise the MWC 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.

DIRECTIONS TO A PROXY

8.13 The 2000 Act does not allow a local authority to issue a direction to a welfare guardian or other proxy. Such a direction to a guardian can only be made by the sheriff under section 3(3) of the 2000 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 of a guardian was not sufficient to ensure that the guardian was carrying out his or her functions in a satisfactory way; or if the guardian was encountering significant obstacles such as conflicts of interest.

SUPERVISION REGULATIONS

8.14 Regulations specify the form that supervision of welfare attorneys should take.

Visiting

8.15 The local authority must arrange for every adult who is subject to welfare guardianship and his or her guardian to be visited within three months of the order being granted, and subsequently at intervals not exceeding 6 months. Visits may be made more frequently at the discretion of the local authority.

8.16 Where the local authority is supervising a person authorised under an intervention order or a welfare attorney, the local authority should arrange for the adult and the proxy to be visited at a frequency to be determined by the sheriff, or if no such period is determined, at least once a month for the duration of a period to be determined by the sheriff. This is based on the presumption that supervision has only been ordered because of serious concerns about the operation of the attorney or intervener.

8.17 A specific purpose of visiting proxies is to enable the authority to inspect the records that all proxies are required to keep under the 2000 Act:

• section 21 for attorneys;
• section 54 for persons authorised under an intervention order;
• section 65 for guardians.

No format is prescribed for records, but guidance is given to proxies in the relevant codes of practice. Welfare guardians are required to keep the following records.

Records to be kept by welfare guardians

8.18 Section 65 provides that a guardian shall keep records of the exercise of his or her powers. It would be good practice for a welfare guardian to keep on a file:

• a copy of the interlocutor containing the guardianship order;
• a written plan for implementing the order, based on the review of the adult's personal welfare which preceded the application;
• a note of all action actually take.

For example, this could include medical appointments attended by the adult following consent by the guardian to treatment, and the outcome of the treatment. If the guardian has power to determine where the adult should live, it could include a note of the homes or other institutions actually visited with the adult, an assessment of their suitability in terms of the adult's reaction and the views of others with an interest in the adult's affairs, the degree of self-respect and privacy which they would afford the adult, and the adequacy of the support that the adult would receive.

• the file should also include also include a record of any incidents affecting the adult's personal welfare such as accidents causing physical injury. It should cover changes in family structure or relationships; the adult starting or stopping education, training or work; any accommodation moves, etc.;
• any correspondence with medical practitioners, care home managers or others concerning the matters covered in the guardianship order;
• a note of every meeting held with the adult or others involved in decisions about his or her personal welfare;
• a note of issues discussed in supervision meetings;
• a note of each meeting held formally to review the implementation of the order;
• a note of any incidental expenses arising out of the order, with receipts, so that reimbursement can be claimed;
• a note to remind the guardian to apply (or in the case of a local authority guardian, to prompt the chief social work officer to apply) in good time for renewal of the order.

8.19 The local authority may arrange or contract with another body to carry out supervisory visits. As above, the local authority might ask another authority to visit on its behalf, for example where the guardian does not live in the same local government area as the adult. The authority should specify clearly in the contract to whom this authority has been delegated and what is expected of the person or body carrying out the supervisory visits on their behalf, and should so inform the proxy.

8.20 If appropriate, visits to the adult and the guardian may be combined, although consideration should be given to carrying out separate visits, for example where there appears to be conflict between the guardian and the adult.

8.21 Visits should normally be made by appointment, 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 allocated for care management, visits may be linked to the normal monthly review cycle.

8.22 Visits should be recorded so that it is clear that the purposes of supervision listed above are being fulfilled. For example, written comments should be made following each visit on the continuing suitability of the guardian and on whether the guardianship order requires variation or renewal or whether the guardian's powers should be recalled. In particular, relevant changes in the adult's circumstances should be recorded, such as major increases or decreases in the adult's resources.

8.23 Clear records should be kept where the outcome of a visit is the conclusion that action such as application to the sheriff is required, and the records should be in a format that ensures subsequent monitoring that the action is carried out.

8.24 Records should also note if any issues arise about the provision of services to the adult, to enable appropriate action to be taken, in conjunction with the adult's care manager or key worker.

Provision of information

8.25 The Regulations require attorneys under the supervision of the local authority and non-local authority welfare guardians to provide certain reports and other information about the welfare of the adult that the local authority may request from time to time.

8.26 The information provided by proxies should be recorded in such a way that any action required by the local authority as a consequence is identified clearly and can be monitored.

8.27 Local authority guidance on reporting might exempt proxies who live at a distance from the adult from reporting accidents and incidents, of which they might not routinely be aware. In these circumstances, the authority would need to rely on reporting by others, such as agencies providing care to the adult.

8.28 The Regulations on supervision do not extend to matters relating to reimbursement and remuneration of a guardian. The local authority should, however, make itself aware, through supervision, of circumstances in which a welfare guardian is receiving either reimbursement for reasonable outlays incurred in the exercise of their functions or, more unusually, remuneration for carrying out his or her functions.

Consultation

8.29 The principles must be observed by anyone exercising functions under the 2000 Act. It would be good practice, and be in line with the principles, for the local authority to consult the adult regularly on the performance by the proxy of his or her functions.

8.30 The adult's nearest relative, primary carer, named person or any other person whom the sheriff has directed to be consulted about the adult's personal welfare should also be given a regular opportunity to give his or her views about how the proxy is exercising his/her functions.

Seeking advice

8.31 The local authority has a responsibility to give a guardian information and advice on the exercise of welfare powers. This will usually happen in regular supervision meetings. However, if a new issue emerges in between such meetings, an individual welfare guardian should be able to contact his or her supervisor within the local authority for advice. Similarly, a local authority guardian should be able to speak to a senior social work officer, an MHO, or someone else with special expertise when required. The guardian should keep a note of any discussion with an officer who has given information and advice.

8.32 The MWC will have been notified of the welfare guardian's appointment by the OPG. The MWC can provide valuable advice to anyone exercising welfare powers in relation to an adult whose incapacity is due to mental disorder.