Adults with Incapacity Amendment Act: consultation
Broadening powers of Public Guardian to order compliance with demands in relation to property and financial affairs of the adult
At present section 64(7) of the Adults with Incapacity Act (AWI) states:
“(7)The guardian shall comply with any order or demand made by the Public Guardian in relation to the property or financial affairs of the adult in so far as so complying would be within the scope of his authority; and where the guardian fails to do so the sheriff may, on the application of the Public Guardian, make an order to the like effect as the order or demand made by the Public Guardian, and the sheriff’s decision shall be final.”
We think that rather than restrict the Public Guardian’s powers in this area to guardians, they should be extended to attorneys under a power of attorney, interveners and withdrawers (under Part 3). This will assist the Public Guardian in her supervisory duties in respect of these areas and provide greater safeguards for the adult.
We also think the Public Guardian should have wider powers to suspend powers granted to a proxy under section 12 of the AWI Act whilst they undertake an investigation. Section 12 already allows the Public Guardian, Mental Welfare Commission (MWC) or local authority to take such steps, including an application to the sheriff, which seem necessary to safeguard the property, financial affairs or personal welfare of the adult. The power to suspend powers would be an additional safeguarding option, where even though the investigation is still on-going the Public Guardian is satisfied in the interim that the proxy should not be able to intromit with the estate.
For instance, at the moment the Public Guardian can freeze bank accounts and benefits/pension payments in, but that may still leave other powers the proxy can utilise, for example taking out finance, signing legal agreements and cashing in policies. It is likely that the power would not be used often and practically could only be used if the adult was not living in the community and care or emergency costs were covered by the local authority. This would be appealable to the sheriff.
We are also interested in your views on whether the power to suspend powers should also be available to the local authority and the MWC as part of their investigations.