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Causes of incapacity in guardianship  

 

Causes and duration of guardianship orders granted to local authorities 2009-10

 

AR-09-10-Table40

 

Causes and duration of guardianship orders granted to private individuals 2009-10

 

AR-09-10-Table41

Our interest in this

We have safeguarding duties in relation to people who come under the protection of the Adults with Incapacity (Scotland) Act 2000. We examine the use of welfare guardianship for adults with a mental illness, learning disability or other mental disorder  to determine how and for whom the 2000 Act is being used. This helps to highlight those individuals with certain mental disorders who might not be benefiting from the rights and protections that are set out in law. The tables above set out our analysis of approved welfare guardianship orders as related to the identified causes of the adult's incapacity and the length for which the orders have been granted.

We have raised concerns in previous reports about the high percentage of orders granted on an indefinite basis. Our concern is the lack of automatic, periodic judicial scrutiny of approved orders. This puts the onus on the individual or other party with an interest to challenge the order. We do not think this is in keeping with accepted standards of justice. We remain particularly concerned about the number of orders that are sought and granted on an indefinite basis for young adults with learning disability. We understand this issue will be addressed as part of The Scottish Law Commission's review of the legislation which is to begin in September 2010.

What we found

As with previous years, the majority of approved guardianship orders related to people with dementia. This stood at 52% of all orders. We had, however, reported last year a decrease in the relative use of guardianship for people with dementia and this trend continued in the past year. There has been a gradual increase in the use of guardianship for people with a learning disability. In 2006-07, 62% of all orders related to people with dementia and 25% were for people with learning disability. This has gradually shifted to 52% for people with dementia and 34% for people with learning disability.

The length of time for which orders are granted remains high with 71% being granted on an indefinite basis. This is the same rate as last year. 84% of orders granted for people with dementia were granted on an indefinite basis. 60% of people with a learning disability had their orders granted on an indefinite basis. The differences between private and local authority applications are of interest. Private applicants are much more likely to be granted indefinite guardianship compared to local authority applicants (76% to 58% respectively). The gap is greatest for adults who have a learning disability.

We found differing practices among local authorities in the length of time for which orders were sought and granted. Renfrewshire (at 100%), Dundee City Council ( 85%), Perth and Kinross (82%) and Falkirk Council ((75%) all had a relatively high percentage of orders granted on an indefinite basis. In other councils such as South Ayrshire (at 9%), East Ayrshire (25%), Argyll and Bute (25%) and North Lanarkshire (33%) the rates were much lower. It is not clear why there should be such disparities. The reasons are likely to be quite complex. Mental Health Officers and local authority service managers will wish to reflect on their practice to ensure it is in keeping with the principles of the legislation.