Using Appropriate Circumstances Agreements to employ POAs as PAs

Personal Assistants
1

Is it possible to employ a person’s Power of Attorney’s (POA) as their PA using Appropriate Circumstances Agreements?

Most people will be familiar with the rules governing the employment of people as PAs when they also hold Guardianship or Power of Attorney. These rules are outlined in ‘The Self-directed Support (Direct Payments) (Scotland) Regulations 2014’.

Section 9(2) outlines the exception to family members rule for Guardians and continuing and welfare POAs. This clearly states under section 9(1) and 9(1b) that:

"9.—(1) Even if regulation 8(2) applies, a family member may not provide support to which a direct payment relates if— "

“(b) the family member is a guardian, continuing attorney or welfare attorney with power to make decisions as regards the support to be provided through the direct payment.”

However, we have heard that some Local Authorities may be making use of an ‘Appropriate Circumstances Agreement’, to enable POAs to be employed as PAs for the person they are the POA for.

Is this something you’ve come across?
Do you work for a Local Authority that is making use of Appropriate Circumstances Agreements in this way?

We’d like to learn more about this. Please share any information, ideas or thoughts you have on this with us.

  • Is this a good idea?

  • Is this possible and legal?

  • What if the POA or Guardian is the most appropriate or only person available to provide the support needed?

  • Does the law need clarifying or changing to help in any way?

  • What is an Appropriate Circumstances Agreement - what’s contained in them?
    @jeremy @Kayleigh @julia @JohnB @Elspeth @Becs

2

Hi Mark,

At present our rule is that we do not engage PoAs as PAs, however the new SDS guidance clearly sheds new light on what can be considered and we will be revisiting our guidance as a result.

Would you be available to discuss this issue?

I’ve cc’d my manager for info.

Regards,

John

1 Like
3

I’m aware other LAs are seeking legal advice on this, with the main issue being a clash with employment law - if/when the person loses capacity, and the POA is already employed, then employment legislation will come into conflict with SDS legislation. Thanks for comment @JohnB, no doubt @MarkieBoy will pick up with you and hopefully we will get a little more discussion here too.

4

Hi John,
Many thanks for the reply. Yes I’d be very interested to have a further chat about this.

I can see this could be a really important issue, not just for the Scottish Borders, but for people across Scotland.

I’m sure the members of the Borders SDS Forum would be interested in taking part in any discussion as well - they might bring lived experience of having Guardianship and Power of Attorney authority and responsibility - so their ideas might help to shape any future Guidance.

I would certainly have time next week on:

  • Tuesday 10th Jan

  • Wednesday 11th Jan

  • Thursday 12th Jan

  • Friday 13th Jan

I’ll email you with potential times for the above dates.

Many thanks,

Mark
@Elspeth @manager

5

Hi John /Mark
The Borders SDS Forum would certainly be interested in joining any discussion on this
Many thanks
Elspeth

6

Hi there

I’ve not come across ‘Appropriate Circumstances Agreements’ before and it would therefore be my presumption that this is a local response in a particular local authority area. I would assume that the agreements cover the points when exceptional circumstances can applied, which Mark has outlined above.

I know of one circumstance in Argyll & Bute when a POA who wasn’t a family member and was employed as a PA. This situation was supported by the Local Authority at the time. Having explored this it does appear that the current law does support this particular circumstance. The key point here is that the POA wasn’t a family member; if there had been this would not have been authorised. This anomaly was highlighted to Scottish Government at the time, and it is my understanding that since then, there have not been any adjustments in the law on this subject.

Take care

Becs

7

Hi Becs,
Many thanks for that. It’s really useful to know if a Local Authority has agreed to an arrangement whereby the POA for a person can also be employed as their PA, when the POA is not a family member.

Whilst there doesn’t seem to be a specific statement to confirm that this arrangement is possible in the legislation, the absence of this might enable such an arrangement to be agreed.

I wonder what view the Office of the Public Guardian would have of this as well, as the organisation overseeing POAs activity in Scotland. I can see that part of their role is to:

‘supervise those individuals who have been appointed to manage the financial and property affairs of adults who lack the capacity to do so for themselves’

Does this need legislative change as well as statutory guidance change to clarify what is and isn’t possible?

Many thanks,

Mark
@Becs @Elspeth @JohnB

8

Hi Mark,

I remember at the time raising it with Scottish Government who saw it as a loop hole that needed to be considered for closure. Since then I have not seen any changes or any further discussion on the topic. Perhaps it’s one to take to the SDS Collaboration? And perhaps we could also seek an opinion from the Office of the Public Guardian?

Becs

9

Hi Becs,
Many thanks for that. I could certainly approach the Office of the Public Guardian and see if they could provide some further information regarding their view on this.

I’ve also copied Toria into this post as she had asked the question about having information on this in the PA Employer and PA Handbooks. We would want to make sure that we had clear, accurate information in these resources, so getting some clarification on this would be really helpful.

For example, are we now to say it is legally possible for a POA to be employed as a PA for the person they are the POA for, so long as they are not a family member as defined in the SDS legislation? I would be a little worried about advising someone that they can do something when this is not explicitly stated in the legislation. I guess some clarity could be helpful for everyone (HSCPs, SiRD funded organisations, SDSS members, people managing SDS budgets etc).

Many thanks,

Mark
@Becs @Elspeth @JohnB @IanThompson @Donald
Toria.Fraser@gov.scot

10

Hi Mark,

I agree.

Take care

Becs

11

Hi Mark

This issue does need to be clarified .The revised Statutory Guidance has a section on DPs and POAs which has led to discussion within LAs about this issue.The Guidance is follows -

“A power of attorney can be granted from an individual who can understand and explain their wishes whereas a guardian is appointed when a person does not have capacity to make decisions on their own behalf. If a family member holds a power of attorney or is a guardian for a supported person, they are usually not permitted to be employed as a PA for the supported person if, as part of their role as guardian or attorney, they have the power to make decisions about the support to be provided through the direct payment (see regulation 9 of the 2014 Regulations).
The intention of Regulation 9 is to avoid conflicts of interest that may arise if the family member with power of attorney is making decisions about direct payments and is also carrying out the role of PA, as they would in effect be employing themselves. Regulation 9 also allows the Local Authority to prevent a family member being employed as a PA if they believe that either the family member, or the supported person, is being forced to agree to the care being provided in that way.
However, Regulation 9 does not cover situations where an attorney is not directly managing a supported person’s direct payments including the signing of contracts. While local authority systems of supervision must comply with the Regulations and be sensitive to potential conflicts of interest, these must not have the effect of imposing a blanket ban that forces supported people to choose between the role of Personal Assistant and holder of Power of Attorney in situations where that power is not currently being used to sign contracts or where a contract can be managed by a third party.
Efforts must be made to respect the supported person’s wishes and to take a proportionate and positive approach to managing risks, in line with the statutory principles of the 2013 Act, and the principles underpinning the Adults with Incapacity Act.
In other words, while there may be some circumstances in which being a Personal Assistant while also holding Guardianship or active Power of Attorney may not appropriate, in all cases the wishes of the supported person, where these can be determined, should prompt local authorities to be creative in finding solutions that can mitigate, manage or reduce risk”

The issue arises where someone is managing a DP (and has signed a DP contract/agreement ) on behalf of a relative or friend and then requests to be employed as their PA. As the Guidance says the issue then is that the person would then be employing themselves and there is then potentially a confict of interests - whether they are a family member or not.

There is also the issue of whether the POA is “active” or not. Many people set up a POA long before they might need it and of course have to have capacity to agree to it at that point. As long as the person has capacity to manage their own affairs and sign a DP Agreement then the POA is presumably not active.

Elspeth

1 Like
12

Thanks @Elspeth, useful clarification on reg 9

13

Does the same apply if the supported person employs a relative on self employed basis?
(relative being a legal guardian for the supported person)
In this case the supported person needs specialised night care. We are not able to employ anyone doing this work) detailed explanation available.
Can you please advise?
Thank you

14

Hi Julinka,
That’s a really good question that you ask in terms of the self-employment of family members as Personal Assistants.

I think the first thing I would say, is that the SDS Legislation doesn’t specifically talk about the employment status of a family member, in terms of being ‘employed’ or ‘self-employed’. It talks about:

'. . . a family member may not provide support to which a direct payment relates. . . ’

It then clarifies that one of the exceptions to the family members rule being:

‘. . . the family member is a guardian, continuing attorney or welfare attorney with power to make decisions as regards the support to be provided through the direct payment’

From this, I would surmise that the family member rule would be applied equally to all family members, whether they were ‘employed’ or ‘self-employed’, as this doesn’t seem to be the determining factor. A family member having Guardianship or Power of Attorney seems to be the important factor here.

I hope that clarifies things a little.

Many thanks,
Mark

15

Hello Mark
I have only seen your reply today. Sorry.
Can you please clarify as our Direct payment review is due next week. I would like to bring it up with the care manager.
Is my husband (father of the person we are both caring for) who lives in the same household eligible to be paid? I would say, that we belong into category of exceptional circumstances as our cared for person needs specialised care. We also have huge difficulties employing staff as there is a shortage of carers. We are more often than not without help.
We have option 1 SDS I spend most of my time trying to get staff to help us. On many occassions when i interview potential carers my offer of employment is declined due to difficulties the potential carer might face when it comes to caring.
We are legal guardians for our cared for person.
Can i bring this up with SDS care manager and maybe with ILF case worker?
Can you please respind?
Many thanks

16

Hi Julinka,
My apologies for not getting back to you sooner - I was away last week.
I’ve had a further look at the updated SDS statutory Guidance in relation to the employment of family members and people with Power of Attorney or Guardianship for the person they would like to be a Personal Assistant for. The Guidance states that:

‘*If a family member holds a power of attorney or is a guardian for a supported person, they are usually not permitted to be employed as a PA for the supported person if, as part of their role as guardian or attorney, they have the *power to make decisions about the support to be provided through the direct payment’ (p.63) (my emphasis)

So the criteria here for anyone with Power of Attorney or Guardianship, is whether their authority extends to decisions regarding the support to be provided to the person they are a POA or Guardian for.

So the answer to your query might be found in the powers that your husband has. If they cover decisions about support arrangements, then this would ‘usually’ mean that the POA or Guardian couldn’t be employed as a PA for the person they are the POA or Guardian for.

I highlight this term ‘usually’ as it’s a key point in this Guidance. The Guidance however, does go on to say:

‘The intention of Regulation 9 is to avoid conflicts of interest that may arise if the family member with
*power of attorney is making decisions about direct payments and is also carrying out the role of PA, as they would in effect be employing themselves.’ (p.63-64) (my emphasis)

The Guidance then further states:

‘However, Regulation 9 does not cover situations where an attorney is not directly managing a supported person’s direct payments including the signing of contracts.’ (p.64) and:

'Efforts must be made to respect the supported person’s wishes and to take a proportionate and positive approach to managing risks, in line with the statutory principles of the 2013 Act, and the principles underpinning the Adults with Incapacity Act.

In other words, while there may be some circumstances in which being a Personal Assistant while also holding Guardianship or active Power of Attorney may not (be) appropriate, in all cases the wishes of the* supported person, where these can be determined, should prompt local authorities to be creative in finding solutions that can mitigate, manage or reduce risk.’ (p.64) (my emphasis)

So what does this all mean in practise? I think that this Guidance means that you cannot just discount the possibility of someone with POA or Guardianship being employed as a PA for the person they are a POA or Guardian for. The legislation seems to say this is not possible. However, this Guidance suggests that in certain circumstances, it is important for Local Authorities to be ‘creative’ in how they find a solution to certain situations - which could mean supporting the POA or Guardian to be employed as the PA.

The question then becomes - who is the employer and how will you manage the employment relationship and any potential risks/challenges? Or who will contract with the POA or Guardian if they are self-employed? If you are joint Guardians, could this potentially enable you to employ or contract with your husband to be the PA?

I think this Guidance enables you to have a further conversation with the Local Authority about how you can put in place an arrangement that would enable your husband to become the paid PA - but also put in place any relevant safeguards that can give all parties some reassurance that the support required will be delivered and any future employment issues can be addressed effectively.

I’m sorry that I can’t give you a more precise response - but I hope this gives you some further details which enable you to have a more effective discussion with the Local Authority regarding this.

Many thanks,

Mark

@Elspeth @JohnB @jeremy @Donald @IanThompson @Becs
Toria.Fraser@gov.scot

17

Hi Marc,

Thank you, this is really helpful and backs up our thinking as we press ahead with a proposal change to our guidance. I will keep you informed of our progress.

I’ve also cc’d my manager for information.

Regards,

John

1 Like
18

Many thanks MarkieBoy
Very helpful and well explained.
I shall put it to LA and see what they say.
Julinka