Adults with Incapacity Amendment Act: consultation
Sheriffs to be able to approve Access To Funds if previously a guardianship order has been applied for and ATF is deemed a lesser intervention
When a guardianship order is applied for through the court, the court rules provide that the application is served on a number of different persons, including the Public Guardian, in order that they can comment on the application or attend a hearing.
The Public Guardian provides comments regularly to the sheriff court on cases. There are often cases where the Public Guardian comments that a financial guardianship is not required and authority via the Access To Funds (ATF) scheme would be a lesser, more appropriate intervention. Often guardianship orders are granted in these cases.
We think one of the reasons is that if the financial guardianship application was refused, then the applicant would have to begin making an ATF scheme application from the beginning, denying the adult the protection and access to their finances that a financial guardianship could provide at that point.
We think, only in these specific cases, a sheriff should be able to grant authority via the ATF scheme, rather than a financial guardianship order. That would prevent the hiatus in applications creating a lack of protection and access to their finances for the adult. Our proposal, where the powers given in the withdrawal certificate are not bound to specific amounts, would make this possible.