Adults with Incapacity Amendment Act: consultation

Mental Health Officer Reports

We know that delays in the obtaining of a guardianship  result from an accumulation of delays in a number of different areas. One of the areas that has been brought up in the past is the Mental Health Officer report.

The requirements of the Mental Health Officer report for a guardianship application are in regulations. The Mental Health Officer has to consider each principle of the Adults with Incapacity Act (AWI Act) which includes taking account the views of the nearest relative and any person who may have an interest in the adult. We have been told that there can be delays where the Mental Health Officer tries to track down the opinions of every possible relative. We are considering whether the Mental Health Officer form for guardianship applications could be improved to make it more concise, whilst retaining the requisite information and would appreciate your views on this.

Person with sufficient knowledge reports for guardianship relating to property and financial affairs 

This report has a wide qualification criteria for who can complete the report. Any person who has sufficient knowledge to complete the report can do so, although they have to explain why.

The format of this report is the same as the mental health officer report, so we are considering whether the same information can be provide in a more concise manner.

In addition, we have been told that the ‘person with sufficient knowledge’ report often is seen of little value. This is both because of the lack of detail but also because of the qualifications of the person completing the report. It may be a social worker, or it could be a friend or family member of the adult. We are interested in your views on whether this needs to change.

The second part of the report relates to the proposed guardian’s suitability. The Office of the Public Guardian (OPG) have in recent times introduced a guardian’s declaration form informally into proceedings.

This was introduced following the experience of OPG of the performance and preparedness of guardians once they had been appointed. Often OPG have found that appointed guardians had little or no knowledge of the reporting duties they were required to undertake as supervised by OPG.

Both the OPG form and the ‘person with sufficient knowledge’ form cover the proposed guardian’s suitability. The OPG form requires a lot more detailed financial information than the second part of the ‘person with sufficient knowledge’ form. We think this information is more appropriately collected by OPG, who then provide a copy of the report to the court, with their own comments on the guardian’s suitability attached. This allows the sheriff to consider suitability and the OPG comments before appointment.

We therefore propose that the second part of the ‘person with sufficient knowledge’ report is no longer required. Instead we propose that in the same way an applicant has to give notice to the chief social work officer of their intention to make an application for guardianship with welfare powers notice should be given  to the Public Guardian for an application including financial powers. Following this the applicant will be required to complete and send the guardian declaration form to OPG. OPG will then submit this to court along with any comments on the suitability of both the guardian and the application.