Adults with Incapacity Amendment Act: consultation
Amendment of interim guardianship order for urgent cases
Welfare guardianship orders invariably involve social care powers and are therefore ongoing, rather than time limited or one off powers. This makes them more suitable to guardianship orders. That meant that a separate, bespoke, short term placement type of order would always have to be followed up by a guardianship order, bringing potential for a gap in the orders, or a situation where the bespoke order might take longer than the guardianship order (on appeal for instance). Therefore it makes more sense to focus attention on using the interim guardianship system.
At the moment a full guardianship order application is required in order for interim powers to be asked for. We propose that the Adults with Incapacity Act be amended so that an interim guardianship can be applied for separately and used swiftly where an urgent order is required, for instance where there is a need to move someone due to an imminent risk to their welfare.
An application for interim guardianship may be made to the sheriff court. It will require an abbreviated Mental Health Officer report, that will report only on the appropriateness of interim powers. This report will however still require to demonstrate the principles have been adhered to – in line with Part one proposals. A single medical report will be required. Given the abbreviated nature of the report, we suggest that rather than a requirement to prepare this report within 21 days the requirement should be that it is prepared within seven days of notice being given to the local authority by the applicant. If a full guardianship order is considered necessary, the full report can be submitted to court in the usual timescale, with a hearing being scheduled on receipt of the full report.
We propose here should be a timescale of 5 calendar days, once the application is received by the court, for the sheriff to make a decision on the interim powers. We do not propose any change to length of time the interim powers can be sought for. At present interim powers can be sought for 3 months beginning with the date of appointment, with flexibility allowed to the sheriff to appoint for a longer period not exceeding 6 months. We recommend these timings remain.