Archived decisions

COUNTY COUNCIL - SOCIAL CARE - 16 MAY, 2002

REPORT OF THE

EXECUTIVE MEMBER

SOCIAL CARE

PART II

USE OF GUARDIANSHIP

1 The Powers of Guardianship

    (a) Section 7 of the Mental Health Act 1983 provides for guardianship with the local social services authority (or a named individual) on the recommendation of two doctors and an application by an approved social worker or nearest relative. Under Section 37 a Court can also make a guardianship order.

    (b) Section 8 of the Act sets out three guardianship powers:

        (i) the power to require residence

        (ii) the power to require attendance at a specified time for the purpose of medical treatment, occupation, education or training.

        (iii) the power to require access by a doctor, approved social worker or other person specified by the guardian.

    (b) Guardianship is used for a number of purposes e.g:

    - Ensuring that there is a proper legal framework within which to make care
    decisions where a person lacks mental capacity (particularly older persons with
    dementia requiring residential care);

    - Encouraging younger persons with severe mental illness to stay in one place
    and not drop out of services;

    - Enabling access to be given to socially withdrawn individuals who would
    otherwise refuse services at home leading to neglect;

    - Preventing exploitation by relatives or other carers.

    (c) Guardianship does not, however, provide any powers in relation to financial affairs. There are several measures that could be taken if someone subject to Guardianship needed assistance and/or protection in dealing with their own finances:

    - If they did not have the mental capacity to manage their own finances an
    application could be made to the Court of Protection to appoint a Receiver to
    manage their finances. The responsible social worker would receive advise
    and assistance in this regard from the Receivership Unit.

    - If they had capacity but needed assistance with their benefits, the Benefits
    Agency could authorise a third party to act as Appointee in order to claim
    and collect welfare benefits to which the client was entitled.

    - Finally they could give Enduring Power of Attorney to the person or persons
    they wished to manage their financial affairs. If they then became mentally
    incapable of dealing with their own finances the Attorney would apply to the
    Court of Protection to register the Power as Enduring and take over the
    financial management.

1 During the period 1 January 2001 to 31 December 2001 11 new applications for guardianship were accepted and 22 existing cases remained open.

2 Looking at the national perspective Hampshire had the highest number of new cases for the year and the second highest number of open cases.


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