Being accused of failing to act in the best interests of a Donor who has made a Lasting Power of Attorney (LPA) can come as a considerable shock to anyone who has been placed into the trusted role of Attorney, especially if there is no basis for such allegations. Whether it is a member of the family, a close friend, or another person who decides to alert the Office of the Public Guardian (OPG), such actions can have serious consequences for both the Donor and the Attorney. In the modern digital era, it is incredibly quick and easy to report a concern about an attorney or Deputy to the OPG through the government’s website. The issue is that because the OPG have to take any such accusations seriously, even entirely baseless concerns have to be investigate. At Steene Law, we are frequently asked to represent Attorneys (typically of parents) who have been accused of not acting in the Donor’s best interests and hence are being investigated by the Office of the Public Guardian. While it is essential that the OPG carry out this duty to stop misuse of LPAs, we have observed changes in the way the OPG are carrying out their investigations.
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taken from the Donor’s bank account, the OPG will write a letter to the Attorney to notify them of the complaint, that an investigation will be taking place, and what happens next. Where information is required, such as bank statements, this will be requested. The main aim of the OPG is to check that the actions taken by the Attorney on behalf of the Donor are within their legal authority, and if not, take further action, including referring the matter to the Court of Protection. At this stage, Attorneys have the opportunity to show that all actions taken have been in the Donor’s best interests. How has the OPG investigations procedure changed?
Unfortunately, we have observed a shift in how the OPG conduct investigations, meaning that once concerns of LPA wrongdoing are referred to the Court of Protection, now we often see the LPAs being suspended with immediate effect and an independent solicitor being appointed as an interim Deputy to manage the Donor’s finances instead. The Attorney is not then given an opportunity to respond accordingly and refute the accusation made before this step is taken. This prevents the Attorney from making further decisions on behalf of the Donor. For many of our clients, this suspension comes as a complete surprise when they receive an Order from the Court of Protection advising them that their authority to act under their LPA has been immediately suspended, pending a court hearing at some future date, often many months away. This immediate and unexpected suspension can have disastrous consequences.
The impact of immediately suspending an Attorney’s authority
While it may seem logical to suspend the authority of an Attorney who is being referred to the Court of Protection during a OPG investigation procedure , the reality is that without an opportunity to argue the allegation fully, Attorneys find themselves unable to carry out their duty and this can lead to a cascade of negative implications. In the case of one of our clients (the daughter of the Donor) in this exact situation, her Attorney authority had been suspended during the process of moving her mother (the Donor) from a care home located many hundreds of miles away, to a place much closer to where our client lived. Unfortunately, by the time the court-appointed Deputy was able to understand the case, our client’s mother had died. At the very time when the Donor’s daughter was needed to make important decisions regarding the health and finances of her mother, she was unable to do so. This placed unnecessary stress and anxiety on both the mother and daughter.
Taking on the role of an Attorney undoubtedly bears considerable responsibility, given the expectations placed on them by the Donor, their family, and the authorities. Even when making sound decisions on behalf of the Donor, it is common for others (often within the family) to believe that actions of an Attorney are incorrect or inappropriate. Receiving notification of suspension of authority from the Court of Protection when it is not warranted, however, can negate the purpose of putting the LPA in place, placing the Donor at significant risk and the Attorney under considerable anxiety.
Make A Free Enquiry
If you are an Attorney and find yourself in receipt of an OPG investigation letter, please give us a call for a free chat on 0203 653 0623, email reception@steenelaw.co.uk or complete a Free Online Enquiry and we will be delighted to help you.
For more details, please take a look at our OPG investigations webpage.
We are available from 8am to 7pm, Monday to Friday.
“I became aware that David and Dianne Steene at Steene Law Ltd were experts in Office of Public Guardian (OPG) investigations. They guided me through a complex process to a completely successful outcome and it is clear that both David and Dianne not only have a depth and breadth of understanding in mental capacity law/Office of the Public Guardian/Court of Protection but also they are prepared to go that extra mile”
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