What are your responsibilities as the guardian of an adult with incapacity?

Any adult over the age of 16 can have a guardian appointed if they have lost legal capacity and need someone to manage their affairs for them.

Loss of capacity –

• can be life-long (e.g. due to a brain injury at birth), or
• can occur due to sudden events such as stroke or accident, or
• may have a gradual onset through conditions such as dementia.

Where a person is incapacitated and does not already have a continuing and welfare Power of Attorney in place, the only way someone can be appointed to have power over financial and/or welfare matters on their behalf is by being appointed their guardian. This requires an application to the Sheriff Court local to the place where the incapacitated adult lives.

We have covered the process of applying for guardianship elsewhere. Here, we’ll consider what the duties of a guardian are once their appointment is in place.

There are some over-arching principles in the Adults with Incapacity Act 2000.

All guardians should –

• act for the benefit of the adult.
• intervene in any aspect of the adult’s life as minimally as possible.
• take account of the adult’s wishes so far as it’s possible to do so. If it’s not currently possible, the guardian should use their knowledge of the adult’s wishes in the past as a guide.
• take into account the views of anyone else who has an interest in the adult’s affairs, which could include other family members, medical professionals, and social workers.
• encourage the adult to make use of their skills and enhance those skills, if possible.

A guardian will have been appointed with a range of powers in place.

Financial powers could include the ability to purchase or sell land or buildings, to make a claim for benefits on the adult’s behalf, to operate their bank account, to sign a tenancy agreement and to handle the adult’s mail.

Welfare powers tend to be related more to the adult as a person. So, they include power to decide where the adult should live and how they are to be cared for.

Duties and accountability of financial guardians

The obligations to account for and report on what you are doing are greater for financial guardians than welfare guardians.

Within 3 months of your appointment, you will require to submit an inventory and a management plan to the Office of the Public Guardian (“OPG”).

The inventory

The inventory lists the adult’s assets and liabilities at your date of appointment as guardian. This will include things like any outstanding balance on a mortgage or details of bank accounts held and their balances.

The management plan

In the management plan, you deal with the adult’s ongoing expenses. You would expect to have to cover matters such as:

• any contributions being made to care fees;
• the level of their utility bills if they are still living at home;
• their likely income as against expected expenditure (e.g. state or private pensions, other state benefits).

Moving on through the management plan, you’re then expected to provide information to show how you intend to use your powers as the adult’s guardian.

For example, if the adult owns buildings or land but they are now in residential care, as guardian, you may indicate your intention to sell that heritable property in the foreseeable future, investing the proceeds carefully so they can fund the adult’s future care.

Annually, financial guardians must account to the OPG for what they have done with the adult’s funds during the preceding year. It is a standard form account. You can download it from the OPG website. This shows the statuses of things such as bank accounts at the beginning and end of the year, together with information as to what income and expenditure has occurred in between.

As a financial guardian you might be worried whether you will cope with these obligations.

Will you manage to complete formal accounts if you don’t have formal training?

You can certainly seek help from a professional but your duty is not to account for every penny you have spent on behalf of the adult during the year.

For example, if you are sending a personal allowance for the adult to their residential care home, you don’t need to account for what that allowance is being spent on. It is enough if you can show that that money was provided and earmarked as a personal allowance.

With more substantial items of expenditure in excess of, say, £100 per item – such as funding a holiday for the adult or purchasing a new item of furniture for their room – you should keep and produce receipts. For financial outlays which are outwith the ordinary, it is sensible to get prior permission from OPG.

Bear in mind that just because payments are substantial that does not necessarily make them “extraordinary. Care home fees will constitute significant expenditure on a month-to-month basis, but that is “normal” expenditure and the guardian does not need to seek consent from OPG every month.

What about the obligations on welfare guardians?

It’s the local authority – Moray Council, in this part of the world – which has responsibility for supervising what welfare guardians are doing “day-to-day”.

In theory, a council representative should be meeting with the appointed guardian at least annually to allow review of the adult’s circumstances.

Ultimately, welfare guardians are accountable to the local authority and to the Mental Welfare Commission for their conduct on the adult’s behalf.

How we can help

If you have any questions regarding your responsibilities as a Guardian or you are looking for advice regarding an “adults with incapacity” matter, generally, please get in touch with us.

All initial enquiries are free of charge and without obligation.

Contact a member of our Private Client team or Court team on 01343 544077 or send us a Free Online Enquiry via this website.