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Transcript of 1 Support needs of guardians and attorneys in Scotland Jan Killeen, Public Policy Director,...
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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: [email protected]