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What the law says

The local authority functions that are relevant to this monitoring report are set out in Part 1 and Part 6 of the Adults with Incapacity Act 2000. Essentially the main general responsibilities are:

  •  through the Chief Social Work Officer; to act as the welfare guardian in respect of an adult, where necessary
  • to supervise the private welfare guardian in the exercise of their functions;
  • to make an application for welfare (and financial) guardianship where necessary and appropriate;
  • to provide mental health officer reports to accompany application on the general appropriateness of the order and the suitability of the proposed guardian (except where that is the Chief Social Work Officer);
  • to visit the adult and guardian within the first 3 months of an order being granted and at no less than 6 monthly intervals thereafter.
  • Regulations require non-local authority welfare guardians (private guardians) to provide certain reports and other information to the local authority. These are any report or specific piece of information about the personal welfare of the adult, or the exercise by the guardian of their personal welfare functions.
  • The law makes certain requirements of the welfare guardian that apply to both local authority and private welfare guardians. One of the basic duties is for the guardian to make a record of how and when welfare powers have been exercised.

The Codes of Practice to the 2000 Act

The Code of Practice for Local Authorities Exercising Functions under the 2000 Act and the Revised Code of Practice for Persons Authorised Under Intervention and Guardianship Orders outline the expected standards of practice for private welfare guardians and local authority officers.  While the Codes of Practice are guidance and not legally binding, it is pointed out that 'failure to comply with them may be one of the factors considered by the Public Guardian, the Mental Welfare Commission, the local authority or the sheriff in considering matters such as the continuing suitability of the person to exercise those functions, in investigating circumstances in which the adult appears to be at risk or in an application before the court.'

It is essential to read the Codes of Practice to understand what is involved, both in the local authority's supervisory role and the role and responsibility of the guardian. The local authority's code states that  'it should be the responsibility of the Chief Social Work Officer of each local authority to ensure that the Code of Practice is implemented by all staff for whom it is relevant.'

Some of the fundamental points made in the Codes of Practice which have relevance to this monitoring exercise can be found our good practice guidance.

You will have a greater appreciation of the findings of this report if you are familiar with the relevant parts of the Code of Practice.