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Powers of attorney: new rules in force

1 May 01

Final part of series on Adults with Incapacity Act examines issues including management of residents’ finances and guardianship orders

by Adrian Ward

Commencement

The new régimes for continuing and welfare Powers of Attorney (Part 2 of the Act) and authority to intromit (Part 3), and the new provisions regarding joint accounts (section 32) all came into force on 2nd April 2001. The relevant Commencement Order1 has now been made, along with seven relevant sets of regulations2. A Guidance Note has been published to accompany the regulations regarding certificates on Powers of Attorney. The following codes of practice have been issued: for persons authorised under Part 3 to access funds of an adult; for continuing and welfare attorneys; and for local authorities exercising functions under the Act. The office of the Public Guardian has published the form of certificate to be issued under Part 3 of the Act and a commendably helpful and user-friendly pack comprising guidance notes and the registration form for Powers of Attorney, guidance for solicitors and advisers on continuing and welfare Powers of Attorney, guidance notes on applications to access funds, and application forms both for authority to access and for authority to transfer funds. Relevant new sheriff court rules should have been published by the time that this article appears. See also the ruling of the Public Guardian quoted on page 11 of the March Journal on how certificates under sections 15 and 16 should be “incorporated” in Powers of Attorney.

There have been many questions about pre-Act Powers of Attorney. The full requirements of the new régime apply to continuing and welfare Powers of Attorney “granted” on or after 2nd April 20013. “Granted” is not synonymous with “executed”. An existing document executed by the granter, held by the granter or the granter’s agent, not yet registered or intimated to the attorney named in it, is unlikely to have yet been “granted”. The transitional provisions4 assume that all Scottish Powers of Attorney are “contracts of mandate or agency” (cf. the references in ss.16(8) and 20(5) to powers granted in other jurisdictions under a “contract, grant or appointment), so it would be difficult to assert that power had been granted in the absence of evidence that such a contract had yet been entered. Even if the view were to be taken that power can be granted unilaterally, it is of course a basic requirement of a unilateral document that it be intimated to be effective. On either view, it will be prudent to check any such unintimated and unregistered pre-Act documents and to consider whether they should be replaced with a fresh grant in accordance with the provisions of the Act.

The extent of the application of the Act to pre-Act Powers of Attorney is given in paragraph 4 of Schedule 4 (if one can make sense of the garbled draftsmanship, referred to in the first article in this series). There is no differentiation between attorneys already acting on 2nd April and attorneys who begin to act later. Paragraph 4 states the provisions of the Act which do not apply to such attorneys. Included within the remainder which do apply are the requirements to comply with section 1 principles and the powers of the sheriff under section 20 upon application by any person claiming an interest to order supervision, accounting or reporting, or to revoke particular powers or the entire appointment. With reference to the comments on “granted” in the preceding paragraph, if in Scotland attorneys can competently be appointed by unilateral grant as well as bilateral contract, then the transitional provisions in paragraph 4 would apply none of the Act’s provisions to unilateral pre-Act appointments.

To register a new Power of Attorney contact: Office of Public Guardian, Hadrian House, Callendar Business Park, Falkirk FK1 1XR. Tel: 01324 678 300

Management of residents’ finances

This new scheme was outlined briefly in the first article in this series and is expected to come into force on 1st April 2002. By then the relevant provisions are expected to have been amended by the current Regulation of Care Bill. This article assumes that those amendments will coincide with amendments tabled to the Regulation of Care Bill shortly before this article went to press. The position should of course be checked once the Bill has been enacted.

The scheme will potentially apply to people resident in “authorised establishments”, of which there will be two categories. “Unregistered establishments” will comprise NHS hospitals (including the State Hospital), independent hospitals and private psychiatric hospitals. “Registered establishments” will comprise “care home services” as defined in the Regulation of Care Bill (which include all establishments within current registration régimes), and unregistered establishments which register solely for the purpose of being able to operate the scheme (proposed to be termed “limited registration services” in the Regulation of Care Bill). Conversely, registered establishments may opt out of the scheme. Responsibilities under the scheme rest with the “managers” of the establishment, who are identified in Schedule 1, also proposed to be amended.

The principal supervisory function rests with the relevant “supervisory body”. It is proposed that this will be the relevant health board for unregistered establishments and the new Scottish Commission for the Regulation of Care for registered establishments. The general investigative powers of the Public Guardian and the Mental Welfare Commission still apply, as does the jurisdiction of the sheriff under section 3(3) to give directions; and of course – as everywhere – the section 1 principles apply.

The procedure in relation to individual residents is set out in section 37. In accordance with section 1 principles, the managers must consider the options. If they decide that management under Part 4 is appropriate, they give intimation to various specified parties and have the resident examined by a medical practitioner. If the medical practitioner is satisfied that the relevant criteria apply, he issues a certificate. Thereupon the managers notify the resident and the supervisory body, and the supervisory body in turn notifies the resident’s nearest relative. Thereafter the managers have the functions and duties set out in section 41 and subsequent sections.

Section 42 contains a procedure for authorising withdrawal of funds from an account with a “fundholder” which can be seen as sitting beside the new authority to intromit in Part 3.

New authority to treat

The medical provisions in Part 5 of the Act are expected to be brought into force towards the end of this year.

The new authority to treat is added to, and does not replace, the existing grounds under which medical treatment, which might otherwise constitute an assault, can be rendered lawful. These are the consent of the patient, valid consent on behalf of the patient, necessity and compulsory treatment of detained patients5. Consent on behalf of an adult can be given (if relevant powers are conferred upon them) by a welfare attorney; under existing law by a tutor but not by a statutory guardian; and under the Act by virtue of an intervention or guardianship order. Also, the Act does not alter the parens patriae jurisdiction6.

The new authority will be triggered by a certificate by a medical practitioner. The certificate will authorise the medical practitioner “to do what is reasonable in the circumstances, in relation to the medical treatment, to safeguard or promote the physical or mental health of the adult”. It will also authorise others acting under the medical practitioner’s instructions, or with his approval. The limitations include three specified in the Act:

  • The use of force or detention, unless it is immediately necessary and only for so long as is necessary in the circumstances.
  • Action which would be inconsistent with any decision by a competent court.
  • Placing an adult in a hospital for the treatment of mental disorder against his will.
Regulations may provide further limitations, or impose particular requirements (such as second opinion or authority of the court).

Here, as elsewhere throughout the Act, the section 1 principles apply, as do the powers of the sheriff to give directions under section 3(3), the investigative powers of the Mental Welfare Commission and the local authority, and the procedure to appeal against decisions about incapacity under section 14 – though section 52 contains a specific right of appeal by “any person having an interest” as to medical treatment.

The new authority does not apply where the medical practitioner primarily responsible is aware that application has been made for an intervention or guardianship order with medical powers. Pending determination of the application, treatment under any other competent ground may be given for preservation of life or prevention of serious deterioration.

Welfare attorneys, guardians and appointees under intervention orders may all have medical powers. Where there is an appointee with relevant powers and the medical practitioner primarily responsible is aware of this, the new authority to treat does not apply unless the circumstances are such that it would not be reasonable and practicable for the medical practitioner to obtain the consent of the appointee. If the medical practitioner has obtained the consent of the appointee, anyone “having an interest” may appeal to the Court of Session. Where there is disagreement between appointee and medical practitioner, and the medical practitioner does not accept the appointee’s refusal, the medical practitioner may have the matter referred to a “nominated medical practitioner” selected by the Mental Welfare Commission. The Commission maintains a 24-hour answering service and will establish a list of people from whom “nominated medical practitioners” will be selected by the Commission in individual cases.

The nominated medical practitioner must have regard to all the circumstances, consult the appointee and (where it is reasonable and practicable to do so) consult someone nominated for the purpose by the appointee. The decision of the nominated medical practitioner may be appealed to the Court of Session.

Clients concerned lest an advance directive might be overridden by the new authority to treat should be advised to grant a welfare Power of Attorney, including appropriate medical powers linked to the advance directive, and to ensure that this is made known to relevant medical practitioners.

Authority for Research

Part 5 also addresses the question of research upon an adult who is incapable (as defined in the Act) of consenting to the proposed research. This is one of several lacunae in existing law which the Act addresses. Section 51 prohibits such research unless (with one possible exception) all of the requirements in sections 51(1), (2) and (3) are met. A new Ethics Committee is to be established, and the requirements include approval by the Ethics Committee. The possible exception is a requirement that the research is likely to produce real and direct benefit to the adult. Where the research is not likely to do so, it may nevertheless be carried out if (i) it will contribute to the attainment of real and direct benefit to other people having the same incapacity, through significant improvement in the scientific understanding of the adult’s own incapacity, and (ii) all the other conditions are met.

Intervention Orders

Part 6, introducing intervention orders and guardianship orders, is due for implementation on 1st April 2002.  Intervention orders will cover a major gap in existing provision. They may take two forms. They may direct a specified action to be taken, or they may authorise an appointee to take specified action or make a specified decision. There appears to be no reason why both should not be covered in the same order, where appropriate. The order may deal with matters of personal welfare, or property and financial affairs, or both.

More than one intervention order may be granted or in force at the same time. An

intervention order may be granted or in force concurrently with a guardianship order. The sheriff may grant an intervention order where guardianship has been sought or is recalled. An attorney could apply for an intervention order to do something outwith the powers conferred under the power of attorney, but of course he would then be acting under the intervention order and not under the power of attorney in the matter in question.

Hitherto, we have tried to use existing techniques, often awkwardly and with difficulty, to deal with situations which will now be covered by intervention orders. Short-term powers have been conferred upon tutors-dative to deal with an interest in testate or intestate succession (including a legal rights entitlement, dealing with a proposed deed of family arrangement, or dealing with establishment of a trust in lieu of outright payment of an interest in succession) or making particular decisions about medical treatment. Curators bonis have been appointed where the true need has been to deal with one particular matter, and the full curatory régime has been unhelpfully cumbersome. There has been resort to negotiorum gestio where the only requirement has been an urgent one to execute a lease, but that of course is subject to all concerned agreeing to accept the authority of the proposed gestor and – while perhaps on occasions the best available solution – a long way from an ideal solution.

All  such matters, and much more, will be covered by intervention orders. Indeed, the outstanding feature of the new intervention orders is their almost unlimited potential scope. Sections 53(1), (5) and (9) appear to bring within the potential scope of intervention orders, and to give validity to, any action or decision in relation to the adult’s property, financial affairs or personal welfare of which the adult is incapable (as defined in the Act) but which the adult could competently have done or decided if the adult had had the capacity to do so. The only exclusion in the Act is the exclusion in section 64(2) of matters where Mental Health Act procedures will prevail, and the reference in that section to regulations under section 48(2) specifying particular requirements for particular classes of medical treatment. While section 64(11) provides for the scope of guardianship powers to be defined, and thus inter alia limited, by regulation, there is no equivalent provision in relation to the scope of intervention orders. There is no limitation to matters competent to curators, tutors or others under existing law.

Intervention orders are registered with the Public Guardian and changes of address (of appointee or adult) must be notified to the Public Guardian. Where an intervention order gives the appointee right to deal with, convey or manage any interest in heritable property which is recorded or registered (or capable of being recorded or registered), then a conveyancing description must be included in the order and the order must be recorded or registered in the Sasine or Land Register, and thereafter submitted to the Public Guardian for him to make an appropriate entry in his register. The consequential alterations to the Land Registration (Scotland) Act 1979 in paragraph 14 of Schedule 5 contain erroneous cross-references in the original HMSO print of the Act, but these have been corrected in subsequent prints, including in Current Law Statutes.

Appointees must keep records of the exercise of their powers.

Guardianship Orders

Guardians may be given personal welfare powers, or property and financial powers, or both. Like appointments of tutors-dative in modern practice, and unlike appointments of curators bonis, guardianship orders will be limited as to duration and flexible as to powers granted. Within the Act, the possible scope of guardianship is only circumscribed by section 64(2), excluding (as with intervention orders) Mental Health Act procedures and the requirements of regulations about medical decisions made under section 48(2). In addition, the Scottish Ministers may by regulations under section 64(11) define the scope of the powers which may be conferred on a guardian.

In framing the powers to be sought in applications, in personal welfare matters existing experience under tutor-dative procedure is likely to continue to be relevant, and in property and financial matters experience of drafting powers of attorney is likely – with suitable adaptation – to be helpful. See section 64(1) for the powers which may be conferred, and section 64(3) for the guardian’s power to act as the adult’s legal representative within the scope of the appointment. The procedure is described below.

Initial appointments will normally be for three years, and renewals for five years, but both may be for such other period (including an indefinite period) as the sheriff may on cause shown determine.

The sheriff may make dual appointments (guardians acting concurrently with different powers), joint appointments (guardians acting together with the same powers), substitute appointments and interim appointments. Guardians must be individuals, except that personal welfare powers may be conferred on the chief social work officer. Factors to be considered by the sheriff in determining suitability of proposed appointees include accessibility to the adult and to the adult’s primary carer, ability to carry out the guardianship function, any likely conflict of interest, any undue concentration of power, and any potential adverse effects of the appointment on the interests of the adult (but conflict of interest and concentration of power is not to be regarded as arising only by reason of close relationship or of residing with the adult).

Under guardianship, provisions for registration of appointments, registration of orders relating to heritage, and notification of changes of address are similar to those for intervention orders.

All guardians must keep records of the exercise of their powers. Gifts may only be made if authorised by the Public Guardian. The adult loses capacity only to the extent of the powers conferred on the guardian, and still has capacity within the scope of the powers if authorised by the guardian to act (under section 64(1)(e) – see section 67(1)).

The general approach to management costs is that the guardian’s outlays may be met from the adult’s estate; there is a presumption against remuneration in the exercise of welfare powers; and there is a presumption in favour of remuneration in the exercise of property and financial powers, dependent upon the size of the estate and the difficulty in managing it. Remuneration may be forfeited in terms of section 69.

A guardian may seek an order from the sheriff to ensure compliance with decisions in exercise of welfare powers. The sheriff has jurisdiction to vary guardianship orders, to replace or remove guardians, or to recall the guardianship order. The Public Guardian may be asked to discharge guardians with financial powers, and may recall property or financial powers. There are provisions to permit resignation of the guardian, but to ensure that the adult is not left in limbo. Third parties are protected where they deal in good faith and for value with guardians.

The new management régime for guardians with property and financial powers reflects the Act’s general shift in emphasis from fixed provision, applicable to all appointments, to an individualised package of provision. Curators operate within a generalised régime of usual powers, powers obtainable from the Accountant of Court and special powers obtainable from the court. Central to the new régime is the individual management plan. Investment provisions are less rigid than under curatory, and include a specific requirement that investments must be suitable for the adult’s estate. The Public Guardian may adapt accounting requirements to particular cases. The management plan and investments must be kept under review. See Schedule 2 for detailed provisions regarding the management plan, the inventory of the estate, the requirement to keep sums in excess of £500 in an interest-bearing account, powers relating to investment and to carrying on an adult’s business, provisions about the purchase or disposal of accommodation, and provisions regarding accounting, auditing and approval of accounts.

Procedure

There is a unified procedure for applications for intervention orders and guardianship orders. The sheriff has jurisdiction. We will no longer be forced to go to the Court of Session as for appointment of tutors. Application may be made by anyone claiming an interest in the property, financial affairs or personal welfare of the adult. It may be made by the adult himself. The local authority have a duty to make application if this is required and no-one else is doing so.

For all applications, three reports in prescribed form are required, all based on assessment within 30 days before lodging of the application. Two of them are medical reports. Where incapacity results from mental disorder, one of them must be from “a practitioner approved …. by a health board as having special experience in the diagnosis or treatment of mental disorder” under the Mental Health (Scotland) Act section 20(1)(b). The third report is a report as to the general appropriateness of the order sought and the suitability of the proposed appointee. Where personal welfare powers are sought (whether or not combined with property and financial powers) this third report must be provided by the mental health officer or (if incapacity arises only from inability to communicate) the chief social work officer. Where only property and financial powers are sought, anyone with sufficient knowledge may provide the third report.

The sheriff can order additional reports or information, further assessments or interviews, and make further enquiries (section 3(2)). To meet concerns about possible difficulties in progressing applications because of delays in obtaining reports, section 57(4) places a statutory duty on mental health officers and chief social work officers to produce their reports within 21 days of the date of notice which must be given to them by applicants of intention to apply for an order. The sheriff has a general power under section 3(2)(d) to make interim orders. The sheriff is required to have regard to the history of any previous intervention and guardianship orders in relation to the adult, and to any currently in force. The sheriff must have regard to the general principles in section 1 and must consider whether a safeguarder (or someone in addition to the safeguarder to ascertain and convey the adult’s views) should be appointed under section 3(4) and (5).