Support needs of guardians and attorneys in Scotland

1. Support needs of guardians and attorneys in Scotland Jan Killeen, Public Policy Director, Alzheimer Scotland

3. 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.

4. Adult Protection in Scotland • 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

5. 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

6. Definition of incapacity under the Act An adult over the age of 16 who is incapable of: Acting or, Making decisions, or Communicating decisions, or Understanding decisions, or Retaining decisions By reason of mental disorder or inability to Communicate because of physical disability.

7. Welfare and financial measures The Act provides the following ways of managing and 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.

8. (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.

9. 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

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

12. 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

13. 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.

14. 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

15. 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.

16. 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

17. 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+.

18. Guardianship statistics Nearly 1000 in 2007-8 60% appointments family members 62% for people with dementia Majority both welfare and financial powers.

19. 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

20. Most welfare guardianship powers include: • Deciding where the person should live (98%) • Consent to medical treatment, care and research (75%) • Access to confidential records (60%)

21. 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.

22. 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.

23. 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

24. 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

25. Take specialist advice on investments • Keep financial records • Review needs of the adult regularly • Follow specific rules e.g. about heritable property, gifts etc.

26. 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

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

29. 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.

30. In conclusion: 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?

32. Key references Office of the Public Guardian for Scotland www.publicguardian-scotland.uk Mental Welfare Commission for Scotland www.mwc.scot.org.uk Scottish Government – Adults with Incapacity Act www.scotland.gsi.gov.uk/justice/incapacity Alzheimer Scotland www.alzscot.org Contact: Jan Killeen: JKilleen@alzscot.org