Adults with incapacity ( Scotland ) Act 2000: proposals for reform

Chapter Nine

Supervision And Support For Guardians

Supervision Of Welfare Guardianships

Supervision of guardians is split between property and finance, and welfare. Currently the OPG has a responsibility to supervise property and finance, and the local authority has responsibilities in relation to welfare (alongside the responsibilities of the Mental Welfare Commission ( MWC)).

In speaking to people about the way the system works at the moment, we have been told that there are concerns about the supervision of welfare guardians. The statutory supervisor for welfare guardians is the local authority. For a variety of reasons the local authorities have not always been able to carry out their supervisory functions as well as they would like.

As well as the local authority, the MWC has a role in welfare supervision. It regularly visits people subject to welfare guardianship and can also visit people subject to a welfare power of attorney or welfare intervention order. They look at any concerns the adult or their guardian might have, the arrangements for their care and support, and how well the principles of the AWI are being applied. Currently it can only visit a proportion of people subject to welfare guardianship. The Commission can also investigate concerns about the welfare of the adult, where they are not satisfied with an investigation carried out by the local authority, or where no investigation was carried out. They can also offer advice and guidance regarding welfare matters to guardians and to adults subject to guardianship.

In order to target resources more effectively, we think that supervision should be tailored depending on a risk assessment of the adult’s circumstances. The social worker or Mental Health Officer would state a level of welfare supervision in their report that they thought was appropriate based on agreed criteria. OPG would recommend a level of financial supervision based on their questionnaire. OPG, the tribunal or the Sheriff would reflect this in the final order.

The assessment of the level of supervision required will be independent of the grade of guardianship that was applied for. Supervision will be at 3 levels, with level 3 being the highest. It will be possible in some cases for a grade 1 or 2 guardianship to have level 3 supervision, depending on the circumstances. Grade 3 guardianships will have level 3 supervision. Level 3 supervision, where there are welfare powers, will involve having a supervisory visit from the local authority. We think a visit at 6 months would be optimum, however this would be flexible and would depend on the case.

We know that welfare and financial matters are very closely linked. If someone requires care, or something to improve their welfare, such as extra clothes or a holiday, then someone will require the financial powers to be able to facilitate this. In the same way, if there is a concern about the way a welfare guardian is acting, then there may very well be concerns about the way the person’s finances are being managed, if it is the same person and vice-versa.

We consider that greater cohesion would be desirable between the organisations involved in supervision. We are therefore proposing a more collaborative approach between the MWC, OPG and the local authorities. We propose that OPG keep a register of high level risk cases (level 3) for both welfare and finance, which would be shared with the MWC. The local authorities would refer to OPG, for recording on this register, any guardianship cases that they consider to be at level 3 and therefore at higher risk. The OPG and MWC would meet routinely to monitor this register.

The outcome of the local authority supervisory visits would be sent to MWC and copied to OPG. Having looked at the local authority visit report and any other evidence, the MWC/ OPG may reduce the supervisory status, notify the local authority and remove the case from the register. The local authority could then reduce the supervisory contact to a level, including none, that their professional assessment considered appropriate.

OPG will continue to be the supervisor of property and financial affairs, with a focus on level 3 supervision (which includes all grade 3 guardianships). These cases would be recorded on the high level case register and discussed as part of the routine review with the MWC.

We also recognise that a transitional system will need to be developed for the existing guardianship cases.

But before we develop this model we would like your views on whether there is a need to change the way guardianships are supervised at present and if our approach is the best way forward.

Questions

Is there a need to change the way guardianships are supervised?

If your answer is yes, please give your views on our proposal to develop a model of joint working between the OPG, Mental Welfare Commission and local authorities to take forward changes in supervision of guardianships.

If you consider an alternative approach would be preferable, please comment in full.

Support For Guardians

We are keen to ensure that guardians are fully prepared and aware of the duties and requirements of the role before they take it on and that they can access help whilst they are acting as a guardians. We have received feedback that guardians are often surprised at the requirements of their role and having taken this on, feel unprepared for what they have to do.

We also think it is very important that guardians are aware that they must act under the principles of the AWI legislation and in particular they must seek to act in accordance with the will and preferences of the adult.

Sometimes guardians receive a lot of help and support from a solicitor when they first enquire about a guardianship, but sometimes guardians are unaware of the role they are taking on until the order is granted by the Sheriff.

This is clearly not helpful for either the adult or the guardian themselves. We would like your views on how such situations can be avoided and how support and advice can best be provided for guardians.

Questions

What sort of advice and support should be provided for guardians?

Do you have views on who might be best placed to provide this support and advice?

Please give reasons for your answers

Support For Attorneys

The appointment of an attorney is quite different to that of a guardian. An attorney is appointed by a private individual to act on their behalf in the event that the individual is unable to take decisions for themselves. It is essentially a private agreement and as such attorneys are not subject to any supervision requirements, though if there are concerns about the way an attorney is acting in his/her role this can be brought to the attention of the OPG who can investigate the matter.

However, taking on the role of attorney can be daunting and whilst there is advice available online and the OPG office can often help with enquiries, it has been suggested to us that more could be done to provide advice and support to attorneys. We would like your views on this, in particular whether you think there is a need to provide additional support for attorneys and what form of support this should take?

Questions

Do you think there is a need to provide support for attorneys to assist them in carrying out their role?

If you answered yes, what sort of support do you think would be helpful?