Adults with Incapacity Amendment Act: consultation
Investigations into cases under the Adults with Incapacity Act
Presently the Office of the Public Guardian (OPG) investigate financial concerns where the adult lacks capacity. This can be where the adult is subject to provisions of the AWI Act, such as where a continuing (financial) power of attorney, a guardianship or intervention order with property and/or financial powers, or authorisation to access funds under Part 3 are in place. OPG can also investigate where the adult lacks capacity and there are no provisions under the AWI Act in place.
The local authority has a duty to investigate cases under the AWI Act if there is a risk to the personal welfare of an adult. The local authority also has a duty in the AWI Act to consult the OPG and the Mental Welfare Commission (MWC) on cases where there appears to be a common interest .
The local authority also has a duty to make inquiries under the Adult Support and Protection (Scotland) Act 2007 (ASP Act). This is if it knows or believes that the person is an adult at risk, and that it might need to intervene in order to protect the person's well-being, property or financial affairs. An adult at risk in this case can include an adult lacking capacity as well as an adult with capacity but who is otherwise vulnerable as described in section 3 of the ASP Act.
The recent Scottish Mental Health Law Review (SMHLR) set out a recommendation on improving the investigation framework within the AWI Act. It stated that at present there was no clear investigation structure with local authorities carrying out social work functions, Police, the MWC and OPG who are all working independently. It recommended that a comprehensive investigatory framework should be developed with OPG, local authorities, the MWC and Police Scotland and full and equal participation with persons with lived experience including unpaid carers.
We agree with the SMHLR and are proposing that we split the investigatory responsibilities between the OPG and local authority. OPG would retain the investigatory function for the areas it actively supervises and where the adult already lacks capacity. This will cover financial guardianship orders, financial intervention orders and Access to Funds (Part 3).
The local authority as part of its adult support and protection functions would take responsibility for cases where there is a power of attorney in place or where the adult lacks capacity and there is no order in place under the AWI Act. These are the cases where incapacity has to be determined and there is most chance of duplication of effort between OPG and local authorities.
The investigatory powers would be clearer because we are proposing that OPG investigate financial guardianships, ATF and financial intervention orders. We anticipate that OPG will require to make an adult support and protection referral to the local authority under section 5 of the ASP Act (noting that the OPG have duties of cooperation under section 5) confirming that it is taking forward a property and finance investigation under guardianships, ATF and intervention orders so that the local authority can check the welfare aspects in relation to the adult concerned. Please see flow chart in the consultation document for the proposed structure.
The reason for the proposed structural changes is to provide greater clarity for those reporting concerns so they are clear on the most appropriate agency to contact in the first instance. There would be clearly defined responsibilities and there is the opportunity to reduce duplication of effort and for the respective agencies to develop their expertise.