Are investigations confidential?

Investigations are confidential. All information and/or evidence ingathered during an investigation will remain confidential and will not be disclosed to anyone except where required to do so by law. We will not disclose the source of the concern or who made the complaint. The information we receive is used only to form a view as to whether there is risk to an adult’s property or financial affairs.

How do I go about getting evidence to support my concern?

We cannot say how you should obtain evidence. Evidence can come in many different forms but should always be provided to support any concerns that you have.

I am a joint attorney can I make a complaint about another attorney?

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.

A person who has had a complaint made against them wants to know who made the complaint, will they be told?

No. It is appreciated that the person who has been complained about feels upset, possibly angry and apprehensive about a concern being raised. However, the Public Guardian is obliged to investigate all concerns and complaints regarding the financial affairs of an adult with incapacity. The identity of the complainer and the nature of their complaint will not be disclosed. The reason for this this is to ensure impartiality.

Will the attorney be removed?

Possibly. It depends on the outcome of the investigation, where it is acceptable we would rather that the granters wishes are adhered too.

What happens following the removal of an attorney?

If there are no remaining parties named on the power of attorney case then we will request that the local authority considers making an application to manage an adults fund going forward, possibly a guardianship order.

What happens if the adult dies during an investigation?

When an adult dies during an investigation the Public Guardian’s involvement in the matter comes to an end, as there is in effect no longer an adult with incapacity. We need to see a copy death certificate. When an adult dies prior to the conclusion of an investigation, any outstanding financial matters can be pursued by the executor of the adult’s estate. Interested parties are also free to seek direction from a Sheriff. If we consider it appropriate, we can offer guidance to the complainer about what further action they might take or who they may contact for further assistance. We recommend that professional legal advice is sought, if considering taking any legal action.

What if I am dissatisfied with the outcome of an investigation?

If we have informed you that the adult is not considered to be at risk and you are not satisfied with the outcome you may make an application to the Sheriff.

It is open for anyone who is sufficiently concerned, at any time, (even during the course of an investigation), to make an application to the Sheriff for any order under the Adults with Incapacity (Scotland) Act 2000 that they feel is necessary. However an adult must be deemed as incapable in order to make such an application and it is recommended that professional legal advice is sought prior to taking such action.

Who should I contact if I think an adult's personal welfare is at risk?

In the first instance you should contact the local authority (usually the social work department) in the area where the adult lives.

You may also wish to contact the Mental Welfare Commission for Scotland for guidance. Both of these bodies have equivalent investigative powers in relation to concerns about the personal welfare of an adult being at risk.

If the adult is deceased we cannot investigate concerns retrospectively. The role of the Public Guardian is to ensure the estate of an adult with incapacity is safeguarded for the benefit of that adult. The Public Guardian gains official status by virtue of the Adults with Incapacity (Scotland) Act 2000; therefore unless there is an adult with incapacity this office does not have any legal power to act. Consequently, we have no authority to investigate retrospectively how the deceased’s estate was managed.