Applying for a guardianship or intervention order: guide for carers

Appendix 6 Frequently Asked Questions

1. Who is entitled to a needs assessment under the Social Work (Scotland) Act 1968?

This will include people who:

• may require permanent admission to care homes or other long-term care settings;
• are being discharged from hospital or other care settings after a period of long-term care;
• are being discharged following a major operation or serious illness requiring acute hospital care;
• are living at home and are at high physical risk;
• are living at home and there are considerable concerns about the need for care and protection;
• appear to lack capacity to make day-to-day or more serious financial decisions.

2. As a carer, do I have any rights?

Yes, if you are providing a regular and substantial amount of care to the person you care for then you will be entitled to an assessment of your own needs, to enable you to continue providing care. You can request a 'carer's assessment' at the same time as you request an assessment for the person you care for.

3. What happens when someone is assessed under AWI?

If the local authority considers that the person you care for has complex or significant care needs and may lack the ability to give informed consent to services needed, a case conference or review will be arranged. The meeting will consider any risks to his/her safety, ability to give informed consent, and whether any legal authority is needed to take forward decisions on behalf of the adult. This is usually organised by a community care manager. The review should involve the adult as far as possible, carers and other professionals.

The Scottish Executive has provided local authorities with advice about using AWI in such circumstances. A formal intervention, such as guardianship, may not be necessary to authorise the decisions to be taken.^[4] If an application for guardianship or intervention order is to be made then the person will need to have a formal assessment of their capacity to make the decision/s in question.

4. What happens if the adult refuses to co-operate with arrangements for an assessment?

If the mental health officer and/or doctors encounter problems in gaining access to the adult for an assessment or interview, or if the adult objects to a report being completed, this is not a total block to your application. The sheriff has powers to direct that the adult be assessed and interviewed.

5. Can I see the report on my suitability to be a guardian/ intervener?

Yes - if you are the person nominated in the application, you will have a right to see the report. If there have been conflicts of interest to consider, the MHO or social work officer may write an adverse report on your application. It would not be good practice for the officer to do this without discussing the matter with you first and proposing alternative plans to protect and safeguard the adult's interests. You should ask for these points to be provided in writing.

6. What do I do if I think that the person I am seeking guardianship for should not be notified about the application?

The general rule is that the adult will be notified of your application. However the sheriff can direct that the adult shall not be notified if he or she considers that the notification might pose a serious risk to the health of the adult. The court will only allow this on the basis of two medical reports. Information cannot be withheld from the adult simply because it is expected that the adult will take no interest or will be distressed or angry. It should certainly not be considered just because the adult might object to the order as they have a right to do so.

7. What are the roles and responsibilities of joint guardians?

Joint guardians are jointly and severally liable (that means together and individually) responsible for each other's actions with respect to decisions made as guardians. This means both have a responsibility to make sure that the other does not act outwith their powers or misuse them. There is an obligation on joint guardians to consult each other on decisions to be made, unless there is a prior agreement on some aspect, or where consultation is impracticable in the circumstances.

8. What happens if I am unable to continue to act as guardian?

Short term - if you are temporarily unable to act, e.g. because of hospitalisation you can expressly delegate functions to another person and this could cover any period necessary. If there is no one to do this and no joint or substitute guardian, you will need to discuss the situation with the local authority. What happens will depend on individual circumstances, but the local authority could apply for interim welfare guardianship for the chief social work officer until you are ready to continue.

Permanently - you should leave instructions with a relative or colleague as to what action to take if you yourself lose capacity owing to an accident or illness, during your term of guardianship. No one else can simply take over the guardian's powers without authority of the court. Your instruction may include contacting the local authority to seek their advice about what should happen. You are allowed to apply to appoint a joint or substitute guardian after your original application, but reports will be needed on his/her suitability.

Substitute guardians may be appointed to take on the duties of the guardian if he or she is unable to continue, either temporarily or on a permanent basis. An application for the appointment of a substitute guardian may be made at the same time as, or separately after the original application.

9. What special provisions apply where an intervention order covers purchase or sale of the person's house?

The Act makes special provision in relation to an intervention order which directs the purchase of accommodation for, or the sale of any accommodation used as a dwelling house by the adult, for example, to sell the house where the adult is to move into residential care; or acquire a specially adapted house for the adult. In all such cases the consent of the Public Guardian is needed.

10. What happens if the person I care for gains capacity to make their own decisions or if their property and welfare can be satisfactorily safeguarded without guardianship?

Seek the advice of the local authority or Mental Welfare Commission. You can apply for the guardianship order to be removed - 'recalled'. The procedure for recalling guardianship powers is detailed in the Part 6 Code of Practice.