“I am being investigated by OPG – What should I do?” If this applies to you, as OPG Investigation Specialist Solicitors, here are our Five Top tips if you receive a letter from the OPG
1. What should I do?
Don’t Panic!
The Office of the Public Guardian (OPG) who are responsible for policing Attorneys, spend time collating evidence prior to contacting you.
The OPG say they will give two weeks from the date of the letter to fill in the Information Form and Financial Declaration, all 27 pages. Often the first letter from the OPG only arrives a week later than the date it was posted, which then means it only leaves a week to fill in these two forms.
The law says that the OPG has to act reasonably, and it is our view that it is not reasonable to be given such a very short period of time to give a full account of an Attorney’s actions.
In most cases we say an email should be sent to the investigator acknowledging the letter, stating the date that you receive it and requesting a full two weeks from the date you received the letter to provide time to reply. If the letter was posted, you should request that an email copy of the document be sent to you, as it is much easier to complete these documents electronically than it is to write on the forms.
2. Who else will know I am being investigated?
The day that you receive a letter from The Office of the Public Guardian telling you of their investigation, letters will have been sent to the Donor’s GP, Social Services, Care Home/Care Agency, and if known to the OPG at this date, also to the Donor’s bank.
All these organisations will be aware of the investigation and the “concerns” they have over you being fit to be an attorney.
If you start receiving emails/telephone calls that are out of character from GPs, Local Authority etc it is likely that they are gathering information to respond to the OPG.
“I cannot speak highly enough of the efforts that both David and Dianne Steene made on my behalf, upon my receiving notice from the Office of the Public Guardian that I was under investigation for failing to exercise my Attorney responsibilities sufficiently, in respect of my wife’s health and wellbeing.The accusations were false and were being made in an attempt to silence me, and to cover up the failings of both the NHS and the local County Council.
An OPG investigation is a frightening and distressing experience, and the support of both David and Dianne was comforting and reassuring.
They both worked tirelessly in ploughing through the vast amount of evidence that I provided, which wasn’t just going the extra mile, it was a marathon.
Their letter to the OPG was a masterstroke in presentation and their advice in answering the OPG’s questions was spot on.
Their knowledge of how the system works is faultless and I would urge anyone in a similar situation to me to contact Steene Law and in so doing receive the very best advice befitting their circumstances.
The OPG closed their investigation and stated that I had acted in the best interests of my wife.
Thank you David and Dianne.”
MF
3. Understanding the OPG’s role.
The Office of the Public Guardian are not “out to get you” but on the other hand, nor are they a friendly ear to have an “off the record” conversation. Their role is to gather information, collate that information and then the person who collates the file, who is called the investigator, passes this information across to the OPG’s legal department. They will decide whether the Attorney has been acting in the best interests of the Donor or whether to commence legal proceedings to remove the Attorney.
All dealings with the OPG should be respectful. The Investigators are not lawyers, are not the decision makers, nor does the investigator have the authority to agree anything, rather their job is to collate the information, review information and prepare a recommendation.
Understanding the OPG’s role, demonstrating an attorney has familiarity with both the Mental Capacity Act 2005 and the Mental Capacity Act Code of Practice is critical to understanding how the OPG’s questions should be replied to.
4. How not to reply.
Answers such as no – my stepbrother is trying to get at me/it is all a mistake/mum wanted me to have it/it is in the Will/I looked after them for years and this was always agreed are not legitimate grounds for refusing to give information to the OPG.
Many of our clients rightly feel outraged at receiving a letter accusing them of not acting in the best interests of the Donor, when they have sometimes spent many years looking after somebody. They may feel this is the final straw and are understandably angry, upset and/or frustrated.
The OPG is not the place to share your frustrations. We see any number of cases where Attorneys have sought to justify their actions by saying they “did not have any idea what they were signing up to” or “it’s my stepbrother, he has always been very difficult” as justification for the Attorney’s actions. Its not.
The OPG is not interested in the motivations of the person who raised the concern and the Court of Protection is equally unimpressed when an Attorney writes that it was never explained to them what their role was and in particular they had no idea what a fiduciary duty means or they have never heard of the Mental Capacity Act Code of Practice.
We suggest that if you are finding it difficult to separate emotion from providing factual information, a call to a specialist practitioner might assist you in thinking about how you are going to reply.
5. What’s the very worst the OPG can do?
Leaving aside the OPG can make an application to the Court of Protection to suspend an attorney, if the OPG believe that the attorney has acted in breach of their fiduciary duties, the OPG can, and do, report attorneys to the Police. Section 4 of the Fraud Act 2006 created an offence of “Fraud by Abuse of Position”. It is our experience criminal proceedings arising from being an attorney are more resolvable when expert advice is taken at the earliest possible date. This offence is punishable by a prison sentence of up to ten years.
Conclusion
Make no mistake, advising an attorney who is subject to an investigation is specialist work.
Steene Law understand.
Please either make an online enquiry or call us now on 0203 653 0625 and let us help you.