Find out what happens when the Office of the Public Guardian carries out an inquiry
At Steene Law we specialise in matters relating to Lasting Power of Attorney abuse.
Often, we receive calls from people who are being accused by the Office of the Public Guardian (OPG) of overstepping their powers as a Deputy or an Attorney.
However, we sometimes come across situations where the OPG is carrying out an inquiry because they suspect the Attorney can simply no longer carry out their duties.
Such a situation arose recently, but first a quick recap on what happens when an LPA is put in place.
The Government promotes Lasting Powers of Attorney as quick and easy to make. You just fill in a few forms on the internet, send off a cheque and, bob’s your uncle, it’s done.
But what happens if, at some point in the future, an allegation is made that an Attorney is misusing their powers?
The very first thing that happens is that the Office of the Public Guardian’s Safeguarding unit will write to ‘remind’ the Attorney of their obligations under the Mental Capacity Act Code of Practice; all 250-plus pages of it!
Buried within the document is a declaration confirming that, when a person agrees to be an Attorney, they are saying that they have read and understood their obligations.
So, when you sign on the dotted line of this ‘quick and easy’ LPA application form you are agreeing that you have read and understood all your duties.
We have yet to meet an Attorney who fully understands the strict standards they have agreed to.
It is a shame that, when the LPA registration is sent to the Attorney, a copy of the Mental Capacity Act Code of Practice is not included – this would at least give them a fighting chance of understanding what they’ve signed up to.
Leaving aside these issues, another potential problem is that, very often, a donor will appoint their spouse as their Attorney.
The reasoning might appear sound. After all, they trust their spouse and cannot envisage a situation where their other half will not be around. They are also worried that if they appoint one child and not all their children, this will cause offence.
Let me tell you about a recent case where we saw, first hand, the consequences of a family who wanted to avoid a “difficult conversation”.
Iris and Geoff’s story*:
*The names of all clients have been changed to protect their identities
We were contacted by Kathleen* who was very worried about her parents, Geoff* and Iris*.
Some years previously, her dad had been made sole Attorney for Iris. Recently, she had been diagnosed with dementia.
Geoff had attempted to apply for Continuing Health Care (CHC) for his wife. During the process, the CHC assessor suspected that Geoff might not have mental capacity to act as his wife’s Attorney and “tipped off” the Office of the Public Guardian (OPG) Safeguarding Unit.
The OPG’s Safeguarding Unit has very wide powers. The matter was referred to the Court of Protection and the next thing that happened was that someone known as a ‘Visitor’ came out to meet Geoff.
A Visitor is usually a nurse or social worker who is appointed by the Court of Protection to go out and make enquiries on their behalf.
In this particular case, the Visitor decided that Geoff did not have the mental capacity to continue in his role as an Attorney for his wife.
A letter was delivered, by hand, at 7.30pm one Friday night, confirming that the OPG had cancelled the Lasting Power of Attorney and Geoff could no longer take decisions on behalf of Iris.
Because an alternative attorney had not been named to cover such an eventuality, all the advantages of having a Health and Welfare LPA were lost.
The bottom line was that Geoff, who desperately needed to help his wife apply for Continuing Health Care, could not do so as he was no longer an Attorney.
Their children (who were not all on speaking terms with their parents) were now able to have an equal say in their health and welfare decisions, which was not what Iris and Geoff had wanted.
The moral of the story is this:
If you have a Lasting Power of Attorney and someone is questioning it – whether it be member of the family or the Office of the Public Guardian – it is vital to seek urgent expert advice.
Please don’t wait until it’s too late – as happened to Iris and Geoff.
Pick up the phone and call us on 0203 653 0623 for a free, initial telephone conversation.
We are available from 8am to 7pm, Monday to Friday and will explain your options including how you can fight an unfair OPG enquiry.
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