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Support needs of guardians and attorneys in Scotland

Jan Killeen, Public Policy Director, Alzheimer Scotland

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This presentation will:

Set out the provisions of the Adults with Incapacity (Scotland) Act 2000, the concept of incapacity, and key principles

Focus on guardianship – monitoring and supervision when a family member/s is appointed and highlight issues arising for their support.

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Local authorities (32) : duty to provide care and protection to children and adults at risk;

must work with National Health Service Authorities authorities (15) and other agencies e.g. police, voluntary agencies

Population of Scotland: 5 million

100,000 people with a mental disorder; of these 62,000 with dementia

Adult Protection in Scotland

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Adults with Incapacity (Scotland) Act 2000

Supports adults with incapacity due to:

mental disorder - dementia, learning disability, mental illness, and head injury

with severe communications problems due a physical disability e.g. stroke

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Definition of incapacity under the Act

An adult over the age of 16 who is incapable of:Acting or,Making decisions, orCommunicating decisions, orUnderstanding decisions, orRetaining decisions

By reason of mental disorder or inability toCommunicate because of physical disability.

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Welfare and financial measuresThe Act provides the following ways of managingand safeguarding an adult’s welfare, finances or both.

Power of attorney - welfare and/or financial powers of attorney

Intervention orders - welfare and/or intervention orders (one-off decision) court appointed.

Guardianship – welfare and/or financial – court appointed.

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(cont)

Access to Funds Scheme – a simple way for family or approved organisation to access the adult’s bank account to meet living costs Appointment by Office of the Public Guardian.

Scheme for the management of residents funds by care homes or hospital

Authority for a doctor to make medical treatment decisions where proxy does not have power to consent.

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Principles in the Act

Any decision or action taken must:

benefit the adult

be the least restrictive i.e. limit the adult’s freedom as little as possible while still achieving the desired benefit

take account of adult’s past and present wishes – ascertain these by whatever means appropriate to his/her communication needs.

take account of views of relevant others as far as is practical

encourage the adult to use existing skills and develop new skills where possible

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Key Question

How are guardians supported to apply the principles and sustain their use over the longer term?

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Regulation

Government Codes of Practice – set out duties and good practice guidance.

Four regulatory bodies have powers under the Act:

Courts

Office of the Public Guardian Local Authorities Mental Welfare Commission

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The Court

Appoints guardians and grants powers

Decides length of order – default 3 years

Provides safeguarder for adult in contentious cases

Give directions to guardians or remove powers

Hears appeals from the adult or others.

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Office of the Public Guardian

Registers all appointments under the Act

Monitors, and supervises financial guardians

Deals with complaints and investigates all financial interventions as necessary

Supervises financial attorneys if ordered by the court

Provides information and training to the public and professionals

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Local authorities

Report on suitability of private welfare guardianship applications to the court.

Supervise private welfare guardians.

Respond to requests for information and support from welfare guardians.

Supervises welfare attorneys if ordered by the court.

Investigates complaints/potential abuse.

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Mental Welfare Commission

Ensures that the rights of individuals under mental health laws are upheld. Role in relation to guardianship is to

Monitor the use of welfare guardianship by local authorities and individuals

Visit the most vulnerable on guardianship

Investigate complaints

Provide a free-phone Helpline, and good practice guides

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Power of attorney statistics

3000 a month registered since 2001.

82% are now for both welfare and financial powers of attorney.

80% are granted by a person aged 60+.

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Guardianship statistics

Nearly 1000 in 2007-8

60% appointments family members

62% for people with dementia Majority both welfare and financialpowers.

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Guardianship needed where:

legal authority needed to make decisions over period of time

where the adult is at high risk and unable to own interests

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Most welfare guardianship powersinclude:

Deciding where the person should live (98%)

Consent to medical treatment, care and research (75%)

Access to confidential records (60%)

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Who can be a guardian? Named person only – usually family member/s

- can be joint welfare and financial guardians

Exception – local authority with duty to act as ‘welfare guardian of last resort’ and apply for financial guardian and nominate an approved solicitor.

Organisations cannot act as guardians there are no free-lance professional guardians, or volunteer guardianship system.

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Monitoring and supervision: welfare guardians

Local authority supervisor (qualified social worker)

Visit the guardian and adult on guardianship within 3 months of the appointment

visit and carry out a Formal Review every 6 months record on a Welfare Guardian Review Form copy of which is sent to the Mental Welfare

Commission.

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At each visit the supervisor must check that

the guardian is:

carrying out his/her duties properly, using powers appropriately

implementing the principles of the Act in relation to decisions made and actions taken on behalf of the individual;

keeping records as required

involving relevant persons in decision-making

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Monitoring and supervision of financial guardians - Public Guardian

The guardian must:

Discuss needs of the adult with other relevant people

Prepare an inventory of the adult’s estate

Prepare a management plan – show application of principles

cont

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Take specialist advice on investments

Keep financial records

Review needs of the adult regularly

Follow specific rules e.g. about heritable property, gifts etc.

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Welfare guardians identified the following needs:

Improved access to information about application process, duties and supervision.

Access to ‘informal’ support from a local independent advice agency or specialist voluntary organisation to talk about worries before going to a regulatory body.

Education programme on ‘being a guardian’,

Guardians Support Network - to deal with sense of isolation, share experiences and solutions

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Does anyone here have knowledge or experience of ‘self-help support networks’ for guardians that we might learn from?

Key Question

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Issues arising in relation to the rights of the adult Courts are granting guardianship orders for an indefinite

period

Number of full powers granted is high, compared to assessed need. This goes against the ‘least restrictive intervention’ principle

Role conflict for guardians

Making difficult ethical decisions – especially where person is resistant.

Importance of communication to empowerment.

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Family members who become guardians and attorneys

take on a big responsibility,

face many difficult dilemmas

need access to information, support and education

How can we help them to do this important job in society better?

In conclusion:

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Key references

Office of the Public Guardian for Scotlandwww.publicguardian-scotland.uk

Mental Welfare Commission for Scotlandwww.mwc.scot.org.uk

Scottish Government – Adults with Incapacity Actwww.scotland.gsi.gov.uk/justice/incapacity

Alzheimer Scotlandwww.alzscot.org

Contact: Jan Killeen: JKilleen@alzscot.org