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Guidance Notes And Application To Recall Powers Of Financial Guardians (Office of the Public Guardian)

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ADULTS WITH INCAPACITY
(SCOTLAND) ACT 2000
Guidance Notes and
Form to apply to
Recall Powers
1
1. Introduction
1.1 WHAT DOES RECALL MEAN?
When reference is made to the recall of a financial guardian’s powers, it means
that the basis on which particular powers were granted no longer apply. Recall
is different to resigning from the post of financial guardian.
This guidance supports the code of practice for persons authorised under
financial guardianship. You should refer to these prior to making an
application.
Welfare powers can also be recalled by either the relevant local authority or
the Mental Welfare Commission.
2. Recall
2.1 WHY MIGHT THE POWERS OF A FINANCIAL GUARDIAN BE
RECALLED?
The Adults with Incapacity (Scotland) Act 2000 (hereafter referred to as the
Act), sets out two grounds for recall:
• the grounds for appointment are no longer fulfilled; or
• the interests of the adult in his property or financial affairs can be
satisfactorily safeguarded or promoted otherwise than by guardianship.
2.2 WHAT IS MEANT BY THE “GROUNDS FOR APPOINTMENT
ARE NO LONGER FULFILLED”?
An example of this would be where an adult gains, or regains a sufficient
degree of capacity, allowing them to carry out the functions covered by the
guardianship order. It could well be that the adult requires some assistance
to achieve this but with appropriate guidance and support is able to make
important decisions and manage their own financial affairs.
2
Only applications
to recall financial
powers are made to
the Public Guardian.
If an application is to be submitted on the grounds that an adult is no longer
incapable and is able to manage his or her own affairs, a report from a medical
practitioner must be forwarded to the Public Guardian. We have prescribed a
style medical report for this, a copy of which is enclosed with the application
form.
2.3 WHAT IS MEANT BY “THE ADULT’S INTERESTS CAN BE
SAFEGUARDED OTHER THAN BY GUARDIANSHIP”?
It may be that an alternative of looking after the adult’s financial affairs
becomes apparent. For example, the adult’s estate might be such that
intervention is required only to administer Department of Work and Pensions
(DWP) allowances and benefits and that appointeeship is sufficient to meet the
adult’s requirements. Or it might be that a less restrictive measure such as an
Intervention Order or Access to Funds may be more appropriate.
If you think the Access to Funds scheme might be appropriate, please contact
the Office of the Public Guardian (OPG) for more information.
3. Who can apply?
3.1 WHO CAN APPLY FOR RECALL OF FINANCIAL POWERS?
Anyone who claims an interest in the property or financial affairs
of an adult. This might be the financial guardian or the adult,
their nearest relative, primary carer, the named person if
applicable or anyone else who considers that they have an
interest.
The application is made to the Public Guardian. An
application form can be found at the end of this guidance.
3
If there are welfare powers in place and recall is appropriate, a separate
application needs to be made to the local authority or Mental Welfare
Commission. In certain situations, however, an application should be made to
the court (see paragraph 5.1).
3.2 HOW MIGHT THE NEED FOR RECALL BE IDENTIFIED?
You may be in daily contact with the adult and as a result be aware that
changes are required. For example, there may have been a steady improvement
in the adult’s ability to manage their own affairs or it might now be a suitable
time to start thinking about a less intrusive measure.
The Public Guardian has authority to supervise and investigate financial
guardians in the exercise of their powers. It is possible in the course of the
Public Guardian’s investigation that something comes to light that prompts
consideration to recalling financial guardianship powers.
3.3 IS THERE A FEE FOR THIS?
Yes. This fee should be sent along with the application. All prescribed fees can
be found in the fees order, a copy of which can be accessed on the website,
www.publicguardian-scotland.gov.uk, or by telephoning the OPG.
4. The Public Guardian
4.1 CAN THE PUBLIC GUARDIAN TAKE STEPS TO RECALL
POWERS?
Yes. The Act allows the Public Guardian to recall the powers of a financial
guardian at his own instance. This means that the Public Guardian does not
necessarily have to be prompted by receipt of an application from someone
described at paragraph 3.1.
There has to be evidence that either or both grounds for recall (see
paragraph 2.1) are satisfied. There are also certain processes that
must be followed prior to any decision about the recall of
powers being made.
4
Before making the
application, the
general principles
must be taken into
account.
4.2 DOES THE COURT HAvE A PART TO PLAY IN ALL OF THIS?
Yes. The court has powers to recall a financial guardianship in the same
way the Public Guardian does.
5. Making an
application
5.1 HOW DO I DECIDE WHOM TO APPLY TO?
Generally applications to recall financial guardianships will be
made to the Public Guardian. This is probably the simplest and
quickest road to go down especially where it is likely that
there will be no objections raised by significant others to the
proposed recall.
However, there will be instances where it is more
appropriate to make an application to the court. This might
be where there is the probability that the proposed recall
will be challenged or that there is reason to believe that it
could prove contentious. It is recommended that you seek
legal advice in such circumstances.
5.2 I HAvE FILLED OUT THE APPLICATION FORM, WHAT
NOW?
You will already have provided a lot of relevant information in support of your
application by fully and comprehensively completing the application form.
In making an application for recall you must take the general principles
into account, including benefit the adult and consider what measures
need to be put in place (if any) to safeguard the adult’s financial
affairs in the future.
5
It is important before submitting your application that you take time to
consider the information provided and if there is anything else that you might
wish the Public Guardian to take into account. For example, is there any
documentary evidence that might support the application?
5.3 WHAT HAPPENS NOW THAT MY APPLICATION HAS BEEN
SUBMITTED?
The Public Guardian will consider what you have said and may ask you to
provide additional information. It is at this stage that the Public Guardian is
required to intimate receipt of your application to:
• the adult (subject to section 11 of the Act);
• their nearest relative;
• the named person, if applicable;
• the primary carer; or
• anyone else whom it is considered has an interest.
The above parties can object to the application but must do so within 21 days.
Objections must be made in writing.
6. Objections
6.1 WHAT HAPPENS IF SOMEONE OBjECTS TO THE RECALL
APPLICATION?
The Public Guardian, on receipt of a written objection, will want to consider
what has been said and if need be, ask for additional information before
making a decision on how to proceed. At this stage, there are three potential
outcomes:
• to recall the powers;
• to propose to refuse the application; or
• to refer the matter to the court for determination.
6
If objections are received they will be considered by the Public Guardian. The
objector may be invited to address the Public Guardian in support of the
objections raised. Thereafter the Public Guardian may recall the
powers.
If the Public Guardian, on the basis of any objections
received, proposes to refuse the application to recall, he is
required to intimate his proposed decision to the applicant
and the adult; they must be afforded the opportunity of
being heard. The requisite 21 days must be observed giving
the adult and the applicant the opportunity to object to the
proposed refusal.
Although the Public Guardian can make a decision based
on the application and any objections received, there may be
occasions when it is appropriate to refer the matter to the court for a
decision. The court’s decision on this matter is final.
All decisions made by the Public Guardian are notified in writing.
6.2 WHAT IF NO OBjECTIONS ARE RECEIvED?
If, on expiry of the 21-day period no objections have been received, the Public
Guardian, will consider the application. He can:
• recall the powers;
• propose to refuse the application; or
• refer the matters to the court.
Again, if the decision is to propose to refuse the application, both the adult
and applicant are given an opportunity to have their say.
Where an application is referred to the court for determination, the court’s
decision on the matter is final.
The Public Guardian notifies all decisions in writing.
If matters are referred
to the court for a
decision, the court’s
decision will be final.
7
6.3 WHAT IF I DISAGREE WITH THE PUBLIC GUARDIAN’S
DECISION?
You can appeal to the court if you disagree with the Public Guardian’s
decision. The letter you receive tells you how to go about this.
7. Further information
7.1 I NEED MORE INFORMATION
You should refer to the codes of practice. You can also write to, or telephone, the
OPG.
Recall 1 /5
Recall Application Form
ADULTS WITH INCAPACITY
(SCOTLAND) ACT 2000
PUBLIC GUARDIAN’S REF: PG/
1. Details of adult
NAME OF ADULT:
ADDRESS:
POST CODE:
DATE OF BIRTH:
2. Details of applicant
(DD/MM/YYY
Y)
NAME OF APPLICANT:
ADDRESS:
DAYTIME TELEPHONE NUMBER:
E-MAIL ADDRESS:
POST CODE:
RELATIONSHIP TO ADULT:
Recall 2 /5
3. Reason for Application to Recall Powers
Tell us why you think the powers relating to property and finance should be recalled. The Public Guardian
can only recall the powers of a guardian on either of the two grounds that follow:
1. The reasons for appointing a guardian no longer apply
For example where the adult has gained or regained sufficient capacity to manage the affairs covered
by the guardianship order. Where this is the case, a report from at least one medical practitioner should
accompany this application. A style medical report can be found at the end of this application.
2. Another less intrusive measure other than guardianship could satisfactorily safeguard the interests in
the property/financial affairs of the adult during his/her incapacity.
For example, an intervention order or access to the adults funds part 3 of the Adults with Incapacity
(Scotland) Act 2000 or Department of Work and Pension (DWP) appointeeship. You must state specifically
the alternative means by which the adult’s interests are to be protected. Your reply will fall within one or
both of the above categories. Please give as much information as you can in the space provided.
I hereby apply for the financial powers in the above guardianship order to be recalled because:
Please use the space below to explain why the reasons for appointing a guardian no longer apply and/or
what other measures will safeguard the adult’s financial interests. Make sure you give as much information
as possible.
(If there is insufficient space please continue on a separate sheet)
The reasons for appointing a guardian no longer apply; or
Another, less intrusive measure other than a guardianship could satisfactorily safeguard the interests of
the adult.
Recall 3 /5
SIGNED:
DATE:
Once the form has been fully completed and signed it should be separated from the guidance and sent to
the OPG at the address intimated overleaf.
This application will be sent to the adult (subject to section 11 of the Act), the adult’s nearest relative,
the named person if applicable and the primary carer and any other person that may have an interest in
the application. Reference is made to the Codes of Practice relating to the guardian consulting with other
interested parties prior to making this application to the Public Guardian.
(DD/MM/YYY
Y)
Recall 4 /5
Ofce of the Public Guardian (Scotland)
Certicate to Accompany Application for Recall
Report of capacity to accompany applications to the Ofce of the Public Guardian under
section 73(1) of the Act for recall of powers of a guardian relating to property and nancial
affairs.
PART A DETAILS OF REPORT WRITER AND ADULT
I (Full Name)
being a medical practitioner with the following professional address:
(state full postal address for contact)
Telephone E-mail
hereby confirm that I examined and assessed the following adult (“the adult”)
Name
Residing at
(state full postal address for contact)
Date of Birth
On (give date of examination and assessment)
PART B DETAILS OF APPLICATION
Name of applicant or person requesting report
Date of application (if known)
Recall 5 /5
PART C FINDINGS OF EXAMINATION AND ASSESSMENT
On the basis of my examination and assessment I am of the opinion that the adult named in
Part A is no longer incapable in relation to decisions about, or of acting to safeguard or pro-
mote his/her interests in his/her financial and property affairs in relation to the matters covered
in the guardianship order. The reason for my opinion is given below.
Please indicate the findings of your examination and assessment, so far as they relate to the
adult’s capacity in relation to the matters which are the subject of the guardianship order.
Please indicate the extent to which you have been able to communicate with the adult,
Please indicate the extent to which you have been able to consult the nearest relative, primary
carer, and anyone else having an interest in, or knowledge of, the adult.
Signed............................................................
Date
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Office of the Public Guardian (Scotland)
Hadrian House
Callendar Business Park
Callendar Road
FALKIRK, FK1 1XR
DX: 550360 Falkirk 3
LP: LP-17 Falkirk
Telephone: 01324 678300
Fax: 01324 678301
Email: opg@scotcourts.gov.uk
Website: www.publicguardian-scotland.gov.uk
The office of the Public Guardian (OPG) is open to the public from
9am to 5pm, Monday to Friday.
This leaflet is available free of charge and available in other formats
and community languages on request.
The office of the Public Guardian subscribes to Language Line and
Text Relay.
If you have any comments/suggestions regarding the contents/
layout of these guidance notes or ways in which we might improve
them, please send these to the above noted address. Your
feedback is important to us as part of our ongoing review of our
services.
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