When we can't get involved

Joint attorney cases

Disputes between joint attorneys are not within our remit to investigate. Joint attorneys usually hold equal powers and can therefore act individually in order to manage, promote or otherwise safeguard the financial affairs should they appear to be at risk.

Investigate when there is no evidence of risk provided

We cannot investigate without evidence of current risk to an adult’s property or financial affairs. The evidence provided should indicate an adult’s funds are being in some way mismanaged, abused or that the adult is in some way being deprived of the use of their funds.

We are unable to take on concerns based on hearsay matters.

Issues around personal welfare / healthcare

We have no authority to investigate welfare or healthcare concerns; if you have such concerns you should contact the local authority in the area in which the adult lives or the Mental Welfare Commission for further information.

Investigate concerns raised in respect of a capable adult

Our legal authority is derived from the Adults with Incapacity (Scotland) Act 2000. The Act defines two fundamental elements, i.e. “adult” and “Incapacity”. This means we only have authority to investigate when an adult, a person who is aged 16 or over, no longer has the capacity to deal with their own affairs.

Where an adult is capable but seen as vulnerable the local authority has a statutory role to investigate.

Concerns about the estate of a deceased adult

We cannot investigate concerns retrospectively in respect of a deceased adult. Our role is to ensure the estate of an adult with incapacity is safeguarded for the benefit of that adult. The Public Guardian gains official status under the terms of the Adults with Incapacity (Scotland) Act 2000. Therefore unless there is an adult with incapacity we do not have any legal power to act.

Historic issues

Our authority only allows us to safeguard the current and future finances of incapable adults. We are therefore unable to look into any historic transactions that may have taken place.

Recovering lost or misused funds

The Public Guardian has no legislative powers to recover funds which have been identified as lost due to misuse or abuse. If you have concerns we would encourage you to make an early referral, as this might ensure that current and future funds are safeguarded.

Attempt to resolve any personal or family disagreement or business disputes (e.g. funding issues)

The Public Guardian must remain impartial in the exercise of her statutory functions and is unable to mediate in any disputes. However, we will look at matters factually to represent the interests of the incapable adult.

Investigate deprivation of capital issues

Our role is to represent the interests of the incapable adult, therefore deprivation of capital issues are a matter for the local authority to decide upon.