This article will explore the challenges the Office of the Public Guardian faces when overseeing the activities of the appointed Deputies and Attorneys.
What is the OPG and what do they do?
The Office of the Public Guardian (OPG) is a governing body in England and Wales which was established in October 2007 by the Mental Capacity Act 2005 (MCA).
The role of the OPG is to safeguard your interests once you have lost capacity, overlooking and monitoring the activities of the appointed Attorneys and Deputies to ensure they are carrying out your wishes and acting in your best interest.
What is the difference between an Attorney and Deputy?
An Attorney is an individual of your choice (most commonly family) registered with the OPG, who is presented with a Lasting Power of Attorney (LPA) a legal document to act on your behalf in respect of your financial and medical affairs BEFORE you lose capacity.
A Deputy is an individual appointed by the Court of Protection, to act on your behalf in respect of your financial and medical affairs AFTER you lose capacity. A Deputy can be family, friends, spouse or the Court of Protection (COP) can appoint a professional Deputy such as a solicitor or a social worker.
Attorneys and Deputies both need to be at least 18 years old.
Duties owed by Attorneys and Deputies:
Once an Attorney or Deputy has been appointed they are obligated to adhere to various rules and regulations published by the OPG, a few of the duties are as follows:
- Meticulous Record-Keeping: Attorneys and Deputies are well-advised to maintain comprehensive records, offering transparency to the OPG in their decision-making processes.
- Conduct: Attorneys and Deputies must ensure they are upholding your expressed wishes and preferences, acting in your best interest when making every decision.
- Seeking Guidance: When uncertainties or challenges arise, Attorneys and Deputies seeking guidance from the OPG can foster a cooperative and informed decision-making environment.
Challenging Attorneys and Deputies:
The OPG serves as a vigilant watchdog, scrutinizing the actions of Attorneys and Deputies. Instances arise where the OPG intervenes to investigate potential misconducts, ensuring that the Attorneys and Deputies are acting in proper conduct and in your best interest.
In the event the OPG concludes at the end of the investigation that financial abuse has incurred during the appointment of the Attorney or Deputy, the COP will take necessary legal action and order for their position to be renounced.
Recent Case Law, an example of financial abuse by Attorneys and Deputies:
- Re Buckley [2013] COPLR 13 – In accordance with the Mental Capacity Act 2005, appointed Attorneys and Deputies can make gifts which form part of your financial assets, only if they are reasonable, in your best interest, for the purposes of charity or a customary occasion i.e. your child’s birthday. In this case the Attorney gifted herself the sum of £80,000 to set up her own reptile-breeding business, arguing this was in the best interest of her mother. The COP did not agree with this stance, and removed the attorney.
If you require any further legal advice and assistance in respect of challenging a Lasting Power of Attorney, please do not hesitate to contact the Talbots Law Dispute Resolution department.
Call us on 0800 118 1500 or email info@talbotslaw.co.uk