These notes of guidance are concerned with the supervision of Welfare Guardians and, in some situations, Welfare Attorneys or persons authorised to act under Intervention Orders. For the purposes of the Act, people acting in such capacity are known as ‘Proxies’
Reference should also be made to the separate notes concerning the application for Guardianship or Intervention Orders and the notes dealing with matters concerning the review of Guardianship Orders and their recall / termination and other matters.
1. Introduction
1.1 The Local Authority has a statutory duty to supervise all welfare guardians.
1.2 The Sheriff may also require that the Local Authority supervise people authorised under an Intervention Order dealing with welfare issues and Welfare Attorneys.
1.3 The Public Guardian has a parallel responsibility to supervise Financial Guardians, people authorised under an Intervention Order for financial purposes, Continuing Attorneys, and people having authority to gain Access to an adult’s funds.
1.4 The Mental Welfare Commission also has a role in protecting the welfare of adults whose incapacity relates to mental disorder.
1.5 As financial and welfare matters frequently overlap there will often be a need to maintain liaison between staff supervising proxies with welfare responsibilities, people authorised to act in a financial capacity on behalf of an adult and the Office of Public Guardian and with the Mental Welfare Commission.
2. Welfare Power Of Attorney.
2.1 The supervision of a Welfare Attorney will normally only be required when an issue of concern has been brought to the notice of the court.
2.2 Any person including the adult themselves may bring a matter of concern to the notice of the court and request that the Sheriff makes an order requiring supervision.
2.3 It is likely that Community Care Services will have had some involvement with the adult and his/her carers prior to any order for supervision being made. If the adult has a nominated social worker it would be normal for this worker to be responsible for the supervision as required by the sheriff. However, the supervisor could be a professional employed by the NHS Trust, whose duties would be delegated by the Local Authority.
2.4 If the adult has no social worker or if the team leader considers that the worker concerned should not be responsible for supervision then another professional should be nominated as soon as possible. This piece of work would be regarded as high priority.
2.5 The Welfare Attorney and the adult should be visited at least once a month or at a frequency directed by the Sheriff, and for as long as the Sheriff directs.
2.6 The Sheriff will specify in the court order any particular requirements of the supervision order and the member of staff undertaking the supervision should be guided by this order.
2.7 Joint visits may be made to the adult and the Welfare Attorney.
2.8 Visits should sometimes be made to the adult and the holder of the power of attorney separately. This is especially important if there appears to be any conflict between the Welfare Attorney and the adult.
3. Persons authorised under an Intervention Order.
3.1 The Sheriff may make an order requiring that an individual authorised under an Intervention Order should be supervised.
3.2 This is only likely to be required if someone has brought to the Sheriff’s notice an issue which suggests that supervision would be of benefit.
3.3 Anyone, including the adult themselves, can draw the sheriff’s attention to something that would lead to a direction for supervision to be given. It would be possible for this to be contained in the M.H.O. or Chief Social Work Officer’s report when the sheriff is considering the initial application.
3.4 It is likely that Community Care Services will have had some involvement with the adult and his/her carers prior to any order for supervision being made. If the adult has a nominated social worker it would be normal for this worker to be responsible for the supervision as required by the sheriff. (But see Para 2.3)
3.5 If the adult has no social worker or if the team leader considers that the worker concerned should not be responsible for supervision then a worker should be nominated as soon as possible.
3.6 This piece of work would be regarded as high priority.
3.7 If supervision of a person holding an Intervention Order for welfare matters is required the Sheriff is likely to give instructions as to frequency of visits duration of supervision requirement etc, as specified in Scottish Executive Regulations.
3.8 If no such directions are given the person holding the Intervention Order and the adult should be visited at least once per month
3.9 As with the supervision of Welfare Attorneys, the adult and the person holding the Intervention Order may be visited together but consideration should also be given to visiting the adult on his or her own from time to time
4. Supervision of Guardians.
4.1 The supervision of Welfare Guardians is a statutory duty of the Local Authority.
4.2 Guardians and those under Guardianship must be visited at least once every three months.
4.3 Guardians and those under Guardianship may be visited together but it is good practice for the adult to be seen separately on at least some occasions.
4.4 The Local Authority may delegate another body to carry out supervisory visits. For example the Guardian may live outside the Highland area.
4.5 Visits to the Guardian and the person under Guardianship will normally be made by prior appointment.
4.6 Visits may be made unannounced if it is felt appropriate to do so. This is likely where there are concerns and should be discussed with the line manager.
4.7 A formal note of the visit will be made and a copy should given / sent to the Guardian. This information may be used as a basis for further action by the local authority at a later date.
5. Chief Social Work Officer as Guardian
5.1 When the Chief Social Work Officer is appointed as Welfare Guardian a named social worker will be nominated to carry out the day to day duties of the Guardian.
5.2 The name of the officer responsible for carrying out the functions and duties of Guardian must be notified to the adult and, where the reasons for incapacity include mental disorder, the Mental Welfare Commission, within 7 working days of the appointment.
5.3 Normally the responsible officer will be the worker who is also responsible for the Care Management of the individual concerned
5.4 The Chief Social Work Officer is responsible for nominating the social worker to carry out the day to day duties of Guardian. This responsibility will be delegated via the Lead Officer – Adults with Incapacity to the Area Community Care Manager.
5.5 The nominated worker will be expected to maintain contact with the person under guardianship on a regular basis
5.6 The frequency of these contacts will vary from case to case and from time to time and at least once every three months.
5.7 The frequency of contacts will be agreed between the nominated worker, his/her line manager, the adult, carers and relatives and recorded in the adult’s file.
5.8 The nominated worker, acting on behalf of the chief social work officer, is subject to the same supervision requirements as any other Guardian.
5.9 The nominated worker’s line manager should therefore regularly check that the worker is fulfilling the requirements of the guardianship order.
6. Record Keeping
6.1 All Guardians and people acting under Intervention Orders are required to keep records of their actions.
6.2 Where a member of social work staff is acting as welfare guardian all records concerning the guardianship should be maintained in a separate section of the service user's file.
6.3 Where social work staff are supervising welfare guardians or people acting under Intervention Orders they should encourage the guardian to keep a file specifically relating to their responsibilities as guardian / Intervener.
6.4 For welfare guardians records to be kept should include:-
- A copy of the original guardianship order and any variation.
- The certificate of appointment as guardian issued by the Public Guardian
- Contact details of the local authority supervisor (for private guardians)
- Name address and contact details of anyone having financial powers (whether under the adults with incapacity act or through other appointments i.e. DSS appointeeship)
- Details of the adults Care Plan including contact details for everyone concerned with its delivery.
- Name and address of all relatives, friends and others who have an interest in the adults welfare.
- Contact details for any professionals with whom contact will be needed.
- A note of any key decisions required in the foreseeable future
- Notes about any action taken
- Copies of all correspondence
- Notes of any important phone calls
- Copies of any invoices for purchases incurred. These will be required to gain reimbursement. Even if the welfare guardian does not have financial powers it may be possible to seek authorisation from the Public Guardian to make significant purchases from the adults estate where these purchases would be for the benefit of the adult.
6.5 For people acting under Intervention Orders the records to be kept should be similar, and should include:
- A copy of the court order granting the Intervention Order.
- A written plan for the implementation of the order.
- A note of all actions taken including all appointments attended by the adult.
- All correspondence relating to the Intervention Order.
- A note of any reviews of the Intervention Order, particularly where the order is to last for a significant period of time.
- A note of any expenses so that reimbursement can be claimed.
- A note concerning the completion of the order.
6.6 For Intervention Orders relating to finance or property the records should include:-
- A copy of the court order granting the Intervention Order.
- A written plan for the implementation of the order.
- A copy of the updated Land Certificate where the order relates to heritable property.
- Any correspondence concerning the exercise of powers granted by the order.
- Copies of all bank statements or other financial information.
- Notes of all actions taken relating to the purchase or sale of property.
- Notes of all reviews of the powers granted particularly where the Intervention Order will be valid for some time i.e. the operating of a bank account.
- A note of any expenses incurred so that reimbursement can be claimed.
- A note of action taken on completion of the order.
N.B. where the Intervention Order seeks to sell or purchase property or undertake other significant financial management it is unlikely that the person named in the order will be a member of the local authority staff. Every effort will have been made before the Intervention Order was applied for to find an independent financial manager to act on behalf of the adult.
Social work staff may however be consulted by private individuals acting under the authority of an Intervention Order about what records should be kept. The Public Guardian will also be able to advise them about this.
6.7 Change of Address. If the adult or a person authorised under an Intervention order or Guardianship Order changes address the Public Guardian must be notified within seven days. The person responsible for this notification is the person authorised under the Intervention Order or the Guardian.
7. Purpose of Supervision.
7.1 Welfare Guardianship should be used to promote as well as protect the personal welfare of an adult. The supervision of the Guardian should be part of this process.
The purpose of Supervision is detailed in Part 7of the Local Authority Code of Practice and in Part 5 of the Code of Practice for Persons Authorised Under Intervention Orders and Guardianships.
7.2 Supervision is intended, amongst others, to ensure that the proxy is carrying out their duties properly and that the adult’s interests are safeguarded; to identify whether a Guardianship remains necessary; and to identify and deal with any difficulties.
8. Consultation.
8.1 The general principles of the Act must apply at all times. The social worker responsible for the supervision of a Guardian should therefore be proactive in consulting with all relevant people, including the adult, about all matters relating to the adult’s welfare affairs.
8.2 The adult themselves, the nearest relative, primary carer and anyone else with an interest in the adult’s affairs or whom the sheriff has directed to be consulted must be given a regular opportunity to give their views.
8.3 The social worker and his/ her line manager will determine how this consultation will take place in each case.
8.4 Because each case will vary, the means of consultation needs to be flexible to meet the individual circumstances.
9. Reports to the Local Authority
9.1 Any person being supervised by the local authority in the exercise of his/her duties as a proxy may be requested to provide reports and other information to the authority.
9.2 The Sheriff may make a direction requiring specific information to be provided.
9.3 The Code of Practice for Local Authorities section 7.26 highlights issues that should be brought to the attention of the local authority, including significant accidents or incidents.
10. Reference Material
10.1 Reference must be made to the Act, its Explanatory Notes, the LocalAuthority Code of Practice, the Codes of Practice for Persons Holding Powers of Attorney, Persons Authorised Under Intervention Orders and Guardians.
10.2 Copies of the Act, Explanatory Notes and Codes of Practice will be available on the Highland Council's website.
10.3 Access to the Act, Explanatory Notes, Codes of Practice and other information may also be obtained from the Scottish Office website at; www.scotland.gov.uk/Topics/Justice/Civil/awi
10.4 Information and advice concerning the Act may be obtained from The Mental Welfare Commission for Scotland K Floor, Argyle House, 3 Lady Lawson Street Edinburgh EH3 9SH Tel: 0131 222 611 e-mail: support@mwcscot.org.uk
10.5 Information and Advice, particularly concerning issues of property and finance, may be obtained from the Office of Public Guardian, Hadrian House, Callander Business Park, Falkirk, FK1 1XR Tel 01324 678300 e-mail: opg@scotscourts.gov.uk website address : www.publicguardian-scotland.gov.uk
10.6 Information and advice is also available from many other agencies including Alzheimer Scotland – Action on Dementia 0131 243 1453, Age Concern Scotland 0131 220 3345, Capability Scotland 0131 313 5510, and ENABLE 0141 226 4541.
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