Filling the Gap: Some Options for Meeting the Need for Welfare Guardianship of Last Resort

Abstract

This paper looks at the welfare guardianship provisions of the Protection of Personal and Property Rights Act 1998 (‘PPPR Act’). The underlying principles of the Act include the presumption of competence and the need for the least restrictive intervention. Three gaps in the welfare guardianship provisions of the PPPR Act are identified. The failure to provide a welfare guardian of last resort for those incapcitated adults who suitable family or friends to consent to appointment is primarily focussed on. This existence of this gap creates a potentially significant legal need that is likely to grow as our population ages. Four options for filling the gap are explored. Their viability is assessed against four criteria; their consistency with underlying principles and cultural values; the need to ensure quality service provision; whether legislative change would be required; and cost effectiveness and proportionality. The four options explored are; establishing a pool of volunteers; professional welfare guardians; body corporate welfare guardians; and establishment of a public guardian. The first two do not require legislative change but the use of professional welfare guardians has been more visible. This option should be explored further, at least until the size of the gap is established. Both body corporate and public guardianship would require significant legislative change, however public guardianship is probably a better option as the privatisation of guardianship is unlikley to find favour in welfare state especially when the state ultimately foots the bill. Public guardians can also fulfil a number of other functions, including education, advocacy and complaints investigation.