Money and legal matters 6 - What to do if you need more powers

Introduction
Intervention order or guardianship?
Guardianship for continuing help
Applying for an intervention order or guardianship
Being a guardian
Management of finances in a care home
What happens to old arrangements
If something goes wrong
Local authority and individual responsibilities
Summary

Introduction

This section is concerned with people who have moderate to severe dementia, and is for carers, relatives or friends who are helping with financial or welfare matters.

If the person with dementia has no power of attorney, or if something needs to be done which is not covered by his or her power of attorney, you can go to court for an intervention order (for a one-off decision or action) or for guardianship (if the person will need help over a long period). Intervention orders and guardianship can cover financial matters, welfare matters or both.

There is a useful and comprehensive Code of Practice for guardians and people holding intervention orders. See Further reading. The Code is also useful for people thinking about applying to be appointed, and covers how to apply, the court process, registration with the Public Guardian and how to carry out the duties of intervener or guardian.

Before deciding whether or not to apply for guardianship for financial matters, you should consider whether it would be more appropriate to apply to access the person’s funds in their bank or building society account instead. See chapter four.

Intervention order or guardianship?

The Act’s principle of minimum intervention means that an intervention order should be used where that is sufficient to deal with the situation. However, people with dementia may need the continuing involvement of a guardian to help manage their finances and care arrangements. For example, it might in theory seem that that an intervention order is enough for the sale of a house where the person needs 24 hour support in a care home. However, arrangements need to be in place to enable the person’s funds to be spent for their benefit on an ongoing basis. In this situation it would be better for an application to be made for welfare and financial guardianship.

If an application for guardianship is made, and the sheriff feels that the powers requested are inappropriate then an intervention order may be granted instead (on the principle of minimum intervention to benefit the adult). However the system does not work the other way around. If you apply for an intervention order and the sheriff thinks that is insufficient, then you will have to start again in making a new application for guardianship. The requirements for making an application for an intervention order or for guardianship are the same.

Intervention orders - for one-off decisions or actions

An intervention order is intended for a situation where a person who is unable to do it him or herself needs a one-off decision made or someone to take an action.

There are two forms of intervention order. An order may direct a specific action to be taken and/or authorise someone – an ‘intervener’ – to take an action or make a specified decision. For example, an order might:

• authorise that someone’s house or car is sold or a more suitable one bought
• let someone sign a tenancy agreement on behalf of the person with dementia
• authorise building a house extension
• give someone the power to make a specific decision about medical treatment.

Guardianship - for continuing help

Guardianship under the Adults with Incapacity Act is intended for ‘continuous management’, to help a person who needs long-term involvement from someone else to make decisions involving his or her financial or welfare matters, or both.

A guardian is normally appointed for three years to start with, but could be appointed for any appropriate period, including indefinitely. There can be joint guardians with the same or different responsibilities. Guardianship is a responsibility, and some people may feel more comfortable sharing the role, usually with another family member. A substitute guardian can also be appointed, to take over if the original guardian becomes incapacitated, goes abroad or dies. This is a good idea, especially for older people applying for guardianship.

What a guardian could do

A guardian can apply for any combination of powers over the person’s finances, property and welfare. These powers might include:

• managing the property or financial affairs of the adult, or specified aspects
• dealing with all aspects of the personal welfare of the adult, or specified aspects
• pursuing or defending nullity of marriage, divorce or separation
• authorising the adult to carry out transactions the guardian may specify
• medical decision-making powers.

The sheriff may grant all the powers requested if he or she feels that is appropriate, taking into account the principles of the Act, and assessment reports on the adult’s capacity.

A guardian can delegate duties, for example, by giving a family member or paid carer money to manage day-to-day expenses. However, he or she is still responsible for the care of the adult and/or the adult’s funds.

What a guardian cannot do

A guardian cannot have power to:

• place the adult in a hospital for the treatment of mental disorder against his or her will
• consent on behalf of the adult to certain medical treatments covered under the Mental Health Act or which Scottish Ministers may list
• make gifts from the person’s estate without permission from the Public Guardian
• consent to or prevent the adult marrying
• make a will on behalf of the adult
• sell property without the Public Guardian’s permission in principle and with regard to cost.

Applying for an intervention order or guardianship

Who can apply

Anyone with an interest (including the person with dementia) can apply for an intervention order or guardianship. Often this could be a carer or relative. If an intervention order or guardianship is needed and no-one else is applying, the local authority must apply. The applicant does not have to be the same person named as the intervener or guardian. For example, if you are willing to be guardian but you don’t feel able to make the application, the local authority could apply, as long as they agree that it is necessary. See section Local authority and individual responsibilities, below.

Guardians for financial matters must be individuals, such as a friend, relative or solicitor. The local authority is not allowed to act as guardian for financial matters but they still have a duty to make arrangements in certain circumstances. However, for welfare matters, the guardian could be the chief social work officer of the local authority, who would delegate the actual work to a member of staff. They must, within seven days, inform the person with dementia, primary carer and nearest relative of the name of the responsible member of staff.

Deciding to apply

You must apply the principles of the Act (see Principles of the Adults with Incapacity Act, chapter one) when you are deciding whether an intervention order or guardianship would help the person with dementia. It might be necessary because there is no-one with the appropriate powers to take an action or decision or to oversee the person’s affairs. In some cases, someone may apply because of concerns about how well the person’s attorney or withdrawer is managing the person’s affairs. It is a good idea to consult the local authority or Mental Welfare Commission about applying for intervention orders or guardianship relating to personal welfare, and the Public Guardian about those relating to property or financial affairs.

How to apply

You can use a solicitor to do the application or you can do it yourself. The Scottish Executive have prepared a pack which provides a lot of very useful information including guidance, forms and example applications. It is available on their website or by post – see Further reading.

It is a good idea to discuss your plans with the social work department at an early stage, as their support will be vital. It may be that the need for guardianship or other form of intervention may have arisen from an assessment or review of the needs of the person with dementia. The Act requires a Mental Health Officer from the local authority to make a report for the sheriff on your suitability to be a guardian. They will ask you about yourself, your circumstances and relationship with the person with dementia.

You apply to the sheriff, and include two medical reports no more than 30 days old, one of which, in the case of people with dementia, must be from a doctor experienced in mental disorder. The other will usually be from the person’s GP. These reports are about the person’s incapacity in relation to the decision-making powers you are seeking. Although medical reports must normally be no more than 30 days old, the sheriff has discretion to accept reports outwith the 30 days, under certain circumstances.

As mentioned above, in applying for welfare guardianship or joint welfare and financial guardianship, you will also need a report, from a Mental Health Officer from the local authority. An application for financial guardianship only requires a report from someone who knows you well and is able to vouch that you are a suitable person (this can be another family member, friend or someone with a financial background).

Normally, the person with dementia will be notified of the application by the court. In very rare circumstances this may be harmful and if so, you will need two medical reports to provide evidence that there would be a high risk to the person’s health. Sheriffs must take into account the views and wishes of the person with dementia either expressed personally or on behalf of the person by an independent advocate.

The sheriff can appoint an interim guardian for up to three months while a full guardianship application is being considered.

It is normal for a guardian to be appointed for a period of three years and then renewed as necessary. However the sheriff can use his or her discretion. For example, where it is clear that the adult is likely to deteriorate then the sheriff may agree to an open-ended appointment.

If the order covers property or financial affairs, you may have to take out special insurance (called ‘caution’, pronounced ‘kay-shun’) to protect the person’s assets in case something goes wrong. The sheriff has discretion to dispense with the need for caution where appropriate and to allow other forms of security to be accepted by the Public Guardian.

All the forms for applications are available on the Scottish Executive’s Adults with Incapacity Act website (www.scotland.gov.uk/Topics/Justice/Civil/16360/4927).

Costs

The costs of applying for guardianship or an intervention order are:

• a fee to the court for the application (£46)
• fees to the two doctors for reports on incapacity (there is no recommended fee level from the Scottish Executive. The BMA recommends fees from between £50-90; consultants may charge more, but some may charge between £100-£150. Some doctors have been known to waive the fee)
• possibly a fee for the third report if it’s from a professional such as an accountant or lawyer (about £150)
• possibly a solicitor’s fee if you cannot get Legal Aid (you can use a solicitor to help you apply, although this is not essential; if you do, ask about the likely cost before you go ahead); costs are likely to range between £750 to £2,000, depending on the complexity of the case.
• registering the order with the Public Guardian (currently £60)
• for guardians with financial powers, there are additional fees to the Office of the Public Guardian for lodging the inventory and management plan which are on a sliding scale depending on the size of the estate, excluding heritable property. Details are available on the OPG website at www.publicguardian-scotland.gov.uk. Costs range from £41 (for an estate up to £30,000) to £870 (for an estate of £500,001 and over)
• the cost of the insurance premiums for caution (unless the sheriff decides it is unnecessary) which will be on a sliding scale depending on the size of the estate, from a minimum of £250. This is an annual fee and often lay guardians have higher premiums than those which would be paid by, for example, a firm of solicitors.

Who pays?

There is now free entitlement to legal aid for all applications for welfare guardianship or for both welfare and financial guardianship - there is no means test. But you do need a solicitor who is willing to deal with legal aid cases. The Scottish Legal Aid Board (see below) can advise on solicitors able to deal with legal aid.

Costs of applying for guardianship can come from the person with dementia’s estate, but you must ask the sheriff to authorise this at the time of making the application, or from legal aid. Legal aid, if granted, would cover the fees of the solicitor, the court and the doctors providing reports.

Solicitors who provide civil legal aid have to be registered with the Scottish Legal Aid Board (SLAB). SLAB maintains a register of relevant firms which can be accessed via their website (www.slab.org.uk/) or you can contact them by email, phone or letter. (see Further help.)

If the local authority applies, it can claim the costs from the person’s estate for financial guardianship but usually not for welfare guardianship. For combined applications the sheriff will decide what the local authority can claim. Financial interveners must request payment for any reasonable costs from the Court in their original application.

Expenses incurred by a family member or friend who has been appointed welfare guardian are not normally granted by the sheriff unless there are exceptional circumstances. You would need to make a claim for expenses to be considered at the time of making the application.

Once a financial guardianship is in operation, there is an annual fee to the Public Guardian, and there is also a scale of fees which the guardian can be paid from the person’s estate, depending on the value of the estate. Guardians such as friends or relatives may choose not to claim payment.

What happens next

The sheriff will consider the suitability of the person applying to be intervener or guardian, taking into account ease of access to the adult; ability to manage care and or financial matters; and any conflict of interests. Guardians are intended to be actively involved with the person, so someone who lives a long way away and visits only occasionally, for example, might not be appropriate. For guardianship applications, the sheriff will also consider the ability of the individual to be guardian, any likely conflict of interest, and any adverse effects which the appointment of the individual would have on the interests of the person with dementia. He or she will also consider any undue concentration of power which is likely to arise over the person with dementia, although this does not mean that someone who is the person’s primary carer or a close relative cannot also be his or her guardian.

The sheriff has the option of granting an intervention order instead of guardianship if he or she considers this sufficient.

If the sheriff approves the intervention order or guardianship, the court will notify the Public Guardian, who will register it and will notify the person concerned and the local authority. If the order includes welfare powers, the Public Guardian will also notify the Mental Welfare Commission. The sheriff can order that you are supervised by the local authority, for example if you might need some support in exercising your powers, or if there is a potential conflict of interest.

If you become an intervener or guardian, you must keep records of what you do on behalf of the person with dementia, and you must inform the Public Guardian of any change of address by you or the person with dementia.

There are special safeguards in the Act covering buying or selling the person’s house. In particular, the Public Guardian has to agree that the proposed price is reasonable.

Being a guardian

The emphasis of guardianship is on person-centred planning and flexibility. Get a copy of the Scottish Executive code of practice for guardians (see Further reading). You must apply the principles of the Act (see Principles of the Adults with Incapacity Act, chapter one) to everything you do as guardian.

The Public Guardian supervises any financial powers, and the local authority and Mental Welfare Commission supervise any welfare powers. Where a welfare guardian has been appointed for at least a year, local authorities are required to arrange an initial visit to the adult and the guardian within three months, then every six months afterwards. The Mental Welfare Commission also has a duty to visit the adult with a guardian.

Financial guardians can be reimbursed for their expenses from the adult’s estate, and may also be paid for undertaking their duties as a guardian if the sheriff agrees. For example, where a solicitor is a guardian with financial powers, he or she may be paid a fee for the work. The Public Guardian will set the amount. Welfare guardians will only be paid where the case has been made to the sheriff and expenses granted.

Management of finances in a care home

If the only income of the person with dementia is their state pension and benefits, then it is enough for him or her to have an appointee approved by the Department for Work and Pensions (DWP) or Benefits Agency. If there is a legally appointed proxy, that is, someone with financial power of attorney or a financial guardian, then he or she will continue to manage financial affairs for the resident.

If a resident appears to lose the capacity to manage money and no one has been appointed to do so, the care home manager will first need to ask the GP for an assessment of the person’s capacity. If the resident is assessed as lacking capacity a certificate of incapacity will be issued to the care home manager.

The care home manager must then notify the Care Commission of his or her intention to manage the resident’s financial affairs (up to the value of £10,000 per year) and apply for a Certificate of Authority which empowers a named person or persons to spend money from specified accounts or funds on behalf of the resident.

Where assets are valued more than £10,000 then the care home manager may apply to the Care Commission for written authority to manage these larger assets. If the Care Commission decides that it is not appropriate for the care home to manage the higher amount and no-one else is likely to do so, the local authority will have to make efforts to appoint someone to act as financial guardian.

The rules and regulations about the management of residents’ finances are set out in Part 4 of the Adults with Incapacity Act and Code of Practice.

What happens to old arrangements

Before the Adults with Incapacity Act, there were different legal arrangements which could give someone decision-making powers on behalf of an adult who was mentally incapacitated.

• Curators bonis, looking after someone’s property and financial affairs, became financial guardians with the same powers as they already had.
• Tutors dative, usually looking after welfare matters and sometimes financial matters, became guardians with the same powers the court originally gave them.
• Tutors-at-law became guardians with power to manage the property, financial affairs or welfare of the adult.
• Guardians under the Mental Health (Scotland) Act 1984 became welfare guardians with the same (limited) powers they already had. When their appointment runs out, they will have to make a new application to be a guardian under the Adults with Incapacity (Scotland) Act 2000, with appropriate powers.

Anyone holding one of these appointments should have been notified, and the change in status happened automatically. The sheriff may renew time-limited appointments within five years. It is good practice to reconsider the best arrangements, under the principles of the Act, even for appointments which are not time-limited.

If something goes wrong

Financial guardians and interveners with financial powers are supervised by the Public Guardian. The Public Guardian will check the accounts regularly and can investigate any complaint.

Anyone who is worried about how a welfare guardian or intervener exercises his or her powers can complain to the local authority. If they refuse to investigate or the investigation is inadequate, the Mental Welfare Commission can investigate. The Commission can also initiate an investigation themselves. If necessary, the case can be referred to the sheriff. The sheriff has the power to require a guardian to report to the local authority; remove a guardian; or replace him or her with a joint or substitute guardian.

Local authority and individual responsibilities

Since the Adults with Incapacity Act came into force, a number of callers to the Dementia Helpline have spoken about pressure being put upon them by the local authority to apply for guardianship to manage the affairs of a family member, particularly in relation to moving the person to a care home, where there is not a welfare power of attorney. There has been a lack of clarity about whether it is necessary to invoke the powers of the Act in every case where an adult lacks the capacity to make a decision, carry out a decision or act in relation to welfare matters, and there is no-one else with the authority to do so, such as a welfare power of attorney.

This has caused particular problems for local authorities who have a duty to apply for an order under the Act where it is considered necessary to protect the welfare (or financial affairs) of an adult with incapacity and no-one else is available or willing to apply. It can also cause problems for those involved in the discharge from hospital of patients who would be unable to look after themselves if they returned home and who lack the capacity to consent to a move to other accommodation.

This uncertainty led to widely different recommended practices in different local authority areas. Some argued that guardianship or intervention orders should always be sought when a major action is to be taken on behalf of a person who does not have the capacity to consent, even if the person does not object; others said that it depends on the circumstances. There are convincing arguments on both sides: on the one hand, application to the courts can be expensive and stressful and can take considerable time; on the other hand, without the scrutiny of the courts, who will protect the person’s best interests and human rights?

The situation has recently been been clarified. If there is no-one with the relevant powers in place such as a welfare power of attorney, where a social services department has assessed the need for 24 hour care in a care home, and the family or other interested parties are in agreement and the person themselves is not refusing, then the local authority has the power to move the person from hospital to a care home without there being a guardianship order in place. This has always been the case but was clarified in law under section 13ZA of the Social Work (Scotland) Act 1968 which provides that, where a local authority has concluded that an adult requires a community care service, but is not capable of making decisions about the service, they may take any steps which they consider necessary to help the adult benefit from that service.

You may have to make your own decision about the use of intervention orders or guardianship, in accordance with the principles of the Act. For example, a move might be needed urgently, because a carer has died or can no longer cope. You might feel that you would be failing in your duty of care to the person if you do not take steps to remove the person from an unsafe situation. An order might not be necessary at all, if the adult can be persuaded to accept the care offered, given time and adequate explanations. Try to establish the adult’s wishes and feelings about the proposed action or actions; this could involve a suitably experienced advocate to ensure that the person understands what action is being proposed and that the person’s views and feelings are communicated.

---

Summary

You can go to court for an intervention order for a one-off decision or action to help someone who is mentally incapable.

You can apply to court to become the person’s guardian if he or she will need continuing help over a long period.

You can use a solicitor to help you apply or you can do it yourself.

Get the Code of Practice for guardians and interveners from the Scottish Executive to guide you.

Guardians with financial powers are supervised by the Public Guardian, who will check the accounts regularly and can investigate any complaint.

Guardians with welfare powers are supervised by the local authority, and the Mental Welfare Commission also have a duty to visit the person under guardianship and protect his or her welfare.

---

Dementia - Money and Legal Matters: index page

Useful links related to this chapter:

Adults with Incapacity website

Office of the Public Guardian

Scottish Legal Aid Board (SLAB)