Office of the Public Guardian

Background

The Act Part 1: General

The Act Part 2: Powers of Attorney

The Act Part 3: Access to Funds

The Act Part 4: Funds of Residents in Care Establishments

The Act Part 5: Medical Treatment and Research

The Act Part 6: Intervention and Guardianship Orders

Public Guardians Office Organisation



Background

The Adults with Incapacity (Scotland) Act 2000 was one of the first pieces of social legislation passed by the Scottish Parliament. The Act received Royal assent on the 9 May 2000. (link to the Act provided by courtesy of Her Majesty's Stationery Office)

In general terms the Act caters for the property, financial affairs and personal welfare of adults (over 16) who are incapable by reason of mental disorder or an inability to communicate. The Act is divided into 6 parts as follows:



Part 1 - General

Defines general principles and includes some definitions. These are to be found in section 1 and are critical to any decisions or actions made on behalf of an adult with incapacity. All necessary applications to the Sheriff will be by summary application. A new Office of the Public Guardian (OPG) is established. The Public Guardian is given a variety of functions including maintaining and amending public registers of court appointments and orders relating to the adult with incapacity. Maintaining and amending registers of continuing and welfare attorneys, supervising and monitoring the financial powers of guardians and persons appointed under intervention orders and investigating complaints relating to the management of finances by attorneys, guardians and others.

Public Guardian's Functions

  • Supervise any guardian or any person authorised under an intervention order in relation to an adult's finances
  • Establish and maintain and make available separate registers for the following
    1. continuing and welfare powers of attorney
    2. all authorisations to intromit with funds
    3. all guardianship orders pronounced in terms of the Act ( financial and welfare)
    4. all intervention orders pronounced in terms of the Act
  • To investigate any complaints regarding the exercise of functions relating to the property or financial affairs of an adult relating to any of the above.
  • To investigate any circumstances in which the property or financial affairs of any adult appear to be at risk



Part 2 -Powers of Attorney

Expands the arrangements that an individual can make for the possibility of their future incapacity. This can be done by appointing, within a power of attorney, a continuing attorney to look after a person's property and financial affairs and/or a welfare attorney to make decisions about personal welfare, including medical treatment. Powers of Attorney will only be enforceable when registered with the Public Guardian.

The Public Guardian will investigate any complaints made against continuing attorneys. (The local authority investigate in relation to welfare attorneys). Applications can be made to the Sheriff by any person claiming an interest in the affairs of a person who has granted a power of attorney for various orders including suspension of the attorney or revoking the attorney's powers.



Part 3 - Access to Funds

This part deals with access by carers in domestic settings to the funds of an adult with incapacity held by an individual or organisation. Applications will be made to the Public Guardian who can authorise payments for a time-limited period. The Public Guardian will be able to carry out checks on individuals authorised and investigate complaints.



Part 4 - Funds of Residents in Care Establishments

Provides for the management by care establishments of the funds and property of residents who are unable to carry out this function themselves. Separate arrangements for the authorisation, control and regulation of these arrangements are being made.



Part 5 - Medical Treatment and Research

Introduces a statutory framework that protects the interests of a patient who is unable to consent to medical treatment. It allows treatment to be given to safeguard or promote the physical or mental health of the adult without their consent. Consultation with attorneys and others close to the adult will be required. Appeals can be made to the Court of Session where disagreement as to treatment persists.



Part 6 - Intervention and Guardianship Orders

A new, flexible and accessible system of intervention and guardianship orders is established to replace the existing offices of curator bonis, tutor at law, tutor dative and guardianship. Where a one-off decision is required eg, selling property, or signing a document an intervention order can be sought from the Sheriff. Where longer term arrangements are needed a guardianship order may be more appropriate, also obtained from the Sheriff. Applications may be made by local authorities or any person claiming an interest. When orders are made they require to be intimated to the Public Guardian who will supervise the activities of those on whom financial powers are conferred.

When do the provisions commence ?

Phased implementation dates are planned as follows -
Parts 1,2 & 3 - April 2001
Part 4 - April 2002
Part 5 - Summer 2001
Part 6 - April 2002




Public Guardian's Office Organisation

The Act creates new functions and responsibilities for the Scottish Court Service a consequence of which will require the setting up of an Office for the Public Guardian. Part 1 section 6 (1) of the Act states that the Accountant of Court shall become the Public Guardian. An implementation team has been established to develop and put in place the procedures and infrastructure to enable the Public Guardian to undertake his functions in terms of the Act.


All enquiries or requests for information should be directed to the Public Guardian's Implementation Team who can be contacted at the following:

Telephone: 01324 678300
Fax: 01324 678301
E-mail: opg@scotcourts.gov.uk


Further information can be obtained on the Adults with Incapacity webpage.

The Public Guardians's Office will be fully open to the public from Monday 2 April 2001.