4 POWERS OF ATTORNEY, INTERVENTION AND GUARDIANSHIP ORDERS
Powers of Attorney
Certification of incapacity
4.1 Under sections 15 and 16 of the Act, individuals can make provision for someone of their choosing to manage their affairs or look after their welfare, if they become unable to do so themselves. It is clear that this is one of the early successes of the Act with over 47,000 powers of attorney already registered with the Public Guardian. Since, in general, this part of the Act is working well, we will not be proposing any major changes.
4.2 A power of attorney to manage financial affairs can be drafted so that it continues or comes into effect after the person granting it loses the capacity to manage his or her affairs. A welfare power of attorney cannot come into effect until the person granting it loses capacity. Both continuing and welfare powers of attorney must be registered with the Office of the Public Guardian before they can come into effect. They can be registered once they have been signed, and before they are required, unless there is a clause in the document stating that it cannot be registered until a specified event has occurred.
4.3 There is a high rate of rejection of powers of attorney by the OPG when sent for registration because of errors in 25% of the documents. We intend, therefore, to retain the possibility of registering powers of attorney as soon as they are signed, except where the deed states otherwise, so that granters can be sure that their powers of attorney are valid and will operate as intended should they lose capacity. If a power of attorney is not registered until capacity has been lost, and it contains mistakes, there is nothing which can be done to rectify it.
4.4 Currently, in cases where the power of attorney is to become operational on the granter's incapacity, i.e. all welfare powers of attorney and financial powers where this is specified, it is not necessary to have a medical certificate of incapacity to define the time from which the attorney has authority, unless the document specifically states that this should happen. Where the need for a medical certificate, or other evidence, is not stipulated, the attorney can decide when the granter has lost the ability to make certain decisions. A concern has been raised about the ability of attorneys to make an appropriate assessment of incapacity. It has been suggested that for all powers of attorney which take effect on the granter's incapacity it would be desirable for attorneys to be required to obtain a medical certificate of the granter's incapacity before operating their powers.
4.5 We take the view that powers of attorney are written by individuals who have capacity and who, therefore, should be free to decide how and when they want their powers of attorney to come into effect. We are not minded to make it a requirement that incapacity must be evidenced by a certificate of incapacity. `
4.6 However, we consider that for powers of attorney which are intended to come into effect on incapacity, how and when capacity is deemed to be lost is something the granter should, at the very least, have considered. This could be achieved by a check in the registration process to ensure that thought has been given to whether the decision about capacity should be left to the judgement of the attorney or whether the attorney's authority should be dependent on a medical certificate of incapacity. This is less prescriptive than requiring a certificate of incapacity in every case but would ensure that individuals considered how and by whom their incapacity should be determined, whilst still allowing freedom of choice.
We are not minded to introduce a requirement for certificates of incapacity in every case where a power of attorney is to become effective on incapacity, but propose to include a check in the registration process to ensure that the granter has considered how and by whom incapacity is to be determined.
Your views
10 Do you support the proposal to include a check in the registration process for powers of attorney to ensure that the granter has considered how and by whom incapacity is to be determined?
Certificates to accompany powers of attorneys
4.7 In order to grant a power of attorney an individual must be capable of understanding what he/she is doing and what the impact of granting the powers will be. All powers of attorney must be supported by a certificate signed by a doctor, solicitor or advocate stating that the granter understands the implications of what he/she is doing. A power of attorney cannot be registered without a supporting certificate. The purpose of the certificate is to protect the individual, particularly when he/she may be vulnerable or susceptible to pressures from others.
4.8 Under sections 15(3) and 16(3) two separate supporting certificates by an approved person are required for a power of attorney which contains both continuing and welfare powers. This is a frequent cause of mistakes with only one certificate being provided when the power of attorney is sent for registration. If only one supporting certificate is provided, the power of attorney cannot be registered by the OPG. Stakeholders have asked for a single certificate to be sufficient in these circumstances. We see no reason, in the light of experience, to maintain a requirement for two certificates and propose to provide that a single certificate should be permitted in these circumstances.
We propose to amend the Act to provide that only one supporting certificate by an approved person is required when a power of attorney contains both continuing and welfare powers.
Your views
11 Do you support the proposal to amend the Act to provide that only one supporting certificate by an approved person is required when a power of attorney contains both continuing financial and welfare powers?
Intervention Orders and Guardianship
4.9 Under Part 6 of the Act, an application can be made to the sheriff for a guardianship or intervention order. Intervention orders are usually concerned with a one-off or time-limited action or decision to be made on behalf of an adult who is not capable of taking the action or making the decision. Intervention orders can relate to the adult's financial affairs, property and/or personal welfare. Guardianship orders are intended for longer-term help or continuous management. Again guardianship orders can cover financial, property and/or welfare matters. The Act allows for both sole and joint guardians to be appointed.
4.10 Guardianship and intervention orders are granted by a sheriff following a court hearing and must be registered with the OPG.
4.11 Applications for guardianship or intervention orders have to be accompanied by two medical reports of incapacity relating to the specific decision-making powers requested. Applications for orders covering financial or property matters must also include a report from someone with sufficient knowledge to establish the appropriateness of the order and of the person nominated to act. Applications for orders covering welfare matters must be accompanied by a Mental Health Officer's ( MHO's) report. These reports are concerned with the appropriateness of the order being sought and the suitability of the person named to act as guardian or intervener. All reports need to be completed within 30 days prior to the application being lodged with the court. The application sets out the powers sought.
4.12 Once granted by the court guardianship orders can be for three years, or for any other period, including indefinitely, as determined by the sheriff. In cases of financial guardianship the sheriff can require the guardians to find caution (see below).
4.13 Orders under Part 6 are not designed to deal with emergency situations. The provisions are intended to enable the management of an adult's financial and welfare matters by another when the adult is no longer capable of managing them him or herself. There are provisions in the Mental Health (Care and Treatment) Act 2003 which will enable an adult with a mental disorder to be removed to a place of safety where he/she is likely to suffer significant harm in a range of circumstances. There is also a current consultation on further protections for vulnerable adults 10.
4.14 We are aware that there are a number of factors preventing this part of the Act from reaching its full potential for users and the following proposals are designed to streamline and simplify the process.
Caution
4.15 Caution is insurance to safeguard the estate of the adult with incapacity from any loss due to the actions of someone acting on his or her behalf.
4.16 Currently, where a sheriff grants an intervention order, or appoints a guardian or a substitute guardian, in relation to financial affairs, he/she must ask the person appointed to find caution except where the person appointed is unable to find caution but is nonetheless suitable to be authorised under the order. We are aware that there are difficulties both in finding and funding caution. The problems include: very few companies offer caution; caution is applied to blocks of value of estate and has a fairly high starting threshold which places a heavy burden on small estates where the value falls significantly below the threshold; and the processing of an application can be quite lengthy. We are aware that caution is rarely dispensed with and that the delays encountered when seeking caution cause frustration and prevent intervention orders being implemented and guardianships from commencing - which may clearly not be beneficial to the adult.
4.17 Sheriffs already have a broad discretion under section 3 of the Act. However, we propose to include a specific provision in the sections of the Act mentioned above to allow sheriffs the discretion to dispense with caution where they consider this to be appropriate in the circumstances.
4.18 Currently the PG has no power to vary caution to reflect changes in the value of an estate over the period of the order. Where estates have been significantly diminished or increased since an order was granted, the level of caution may have become inappropriate. We propose giving powers to the PG to vary the amount of caution set - where the sheriff has set this as a percentage of the estate - to reflect changes over a period in the estate's value.
We are proposing to give sheriffs discretion to dispense with caution where they consider this to be appropriate in the circumstances. We are also proposing to allow the PG to vary the amount of caution set to reflect changes in the value of an estate.
Your views
12a Do you agree that it would be beneficial to make specific provision for sheriffs to dispense with caution if they consider it appropriate in the circumstances?
12b Do you agree that the PG should be granted powers to vary caution?
Time limit for reports for applications for guardianship and intervention orders
4.19 Currently, there is a 30 day limit within which reports supporting intervention and guardianship applications must be lodged. We are aware that it can be difficult to obtain and lodge all of the reports within the time limit. We know that the general discretion which sheriffs have under section 3 has been used to extend the period for lodging the reports. It has been suggested that where an adult's condition is stable and long term, or deteriorating and long term, that sheriffs should have express discretion to lengthen the period for lodging the reports to possibly up to 60 days in these circumstances because there would no benefit to the adult in requiring further reports.
We propose to make specific provision to allow sheriffs discretion to extend the period for lodging reports to a maximum of 60 days in cases where an adult's condition is stable and long-term, or deteriorating and long term.
Medical reports where the adult is outside Scotland
4.20 When the cause of incapacity is mental disorder, it is necessary for one of the medical reports which must be lodged with the guardianship or intervention order application to be signed by a medical practitioner approved for the purposes of section 22 of the Mental Health (Care and Treatment) Act 2003 (which comes into force in October 2005). We are aware that there can be difficulties and significant additional costs in obtaining a report from the approved medical practitioner in cases where the adult lives outside Scotland.
4.21 A possible solution would be for the examination of the adult to be carried out by an appropriately qualified medical practitioner, recognised by the country in which he/she works, who has the knowledge and ability to assess the adult. To ensure that the requirements of the 2000 Act are met, we propose that the examining medical practitioner should then discuss that examination with a medical practitioner approved under section 22 of the 2003 Act or with a medical commissioner or medical officer of the Mental Welfare Commission for Scotland before providing a report on the adult's capacity in relation to the measures sought. This would enable guidance on the requirements of Scottish law to be provided, and at the same time ensure an appropriate and timely assessment of capacity without the need to bring the adult to Scotland, or for a Scottish doctor to visit the adult.
Interim Guardianships
4.22 Under section 57(5) and (6), a sheriff can appoint an interim guardian for a period of up to three months. We understand that interim orders are granted in 25-30% of cases. We also understand that a few of these cases require a further interim order because of the complexity of the case which means that the parties have to reapply to the court. We are not clear that any changes to the current position are necessary but are seeking views on whether it would be desirable for sheriffs to have discretion to make interim orders for a period of more than three months where this is appropriate in the circumstances of the case.
Your views
15 Should sheriffs be given discretion to make interim orders for a period of more than three months where this is appropriate in the circumstances of the case?
Recall
4.23 Guardianships can be recalled if the grounds of appointment are no longer fulfilled or if the adult's welfare is adequately protected in some other way. The sheriff and the PG can recall financial guardianships and the sheriff, local authority and the MWC can recall the powers of a welfare guardian. Currently, a local authority cannot recall a welfare guardian's powers where the Chief Social Work Officer is the welfare guardian. It has been suggested that local authorities should be able to recall their own guardianships to ensure that they are able to act in accordance with the principle of least restriction and that there should be no delay in recalling a guardianship when it is no longer needed. We agree with this and propose to amend the Act accordingly.
4.24 In addition, stakeholders have suggested that there is a need to simplify recall procedures. We will consider the procedures with the four bodies which can recall guardianships and, if appropriate, will bring forward adjustments. We would be interested to hear of areas of specific operational difficulty in the recall procedures.