Complaints against Deputies and Lasting Powers of Attorneys
The Compliance Unit at the Office of the Public Guardian (OPG) deals with investigations into complaints against deputies and attorneys. The OPG’s annual report for 2011/2012 indicates that they received 3,653 referrals in 2011/2012, compared to 2,566 in 2010/2011.
This represents a 42% increase in complaints. However, it is still a tiny percent of the overall number of Deputies and attorneys. To put the numbers into context, the business plan for 2013/2014 recently published by the OPG reports that around 21,000 Lasting Powers of Attorneys (LPAs) and Enduring Powers of Attorneys (EPAs) were registered each month in 2012/2013.
The vast majority of the investigations were into an individual acting in relation to a single client. Only 32 investigations were carried into professional or public authority Deputies and attorneys.
Almost all the investigations were into allegations of financial abuse. Of referrals received by the Compliance Unit, 38% were received from concerned relatives or friends, 24% from local authorities, 9% from solicitors and 9% from attorneys and Deputies (usually to report concerns about a co-attorney or co-Deputy or third party). The remaining 20% of referrals came from banks, doctors, advocates, carers and the police.
The outcome of the OPG’s investigations included:
- 94 applications to the Court of Protection to discharge Deputies or revoke EPAs/LPAs.
- 5 other types of Court applications – eg to freeze bank accounts or to obtain an order directing the attorney/Deputy to account to the OPG.
- 74 cases where the investigation found no evidence of the Deputy/attorney acting improperly.
- 2 cases where the OPG has written a formal instruction to Deputies/attorneys to comply with the requirements of their role or face further action.
The majority of complaints and investigations by the OPG relate not to dishonesty, but lay-Deputies being unable to cope with the onerous requirements of a Deputyship Order. This has been acknowledged in the annual report for 2011/2012, which states that:
“This year has seen a shift in approach towards seeking agreed outcomes where these work in the best interests of the person lacking capacity. For example, in some cases, the OPG has sought directions from the Court which introduce additional scrutiny of the attorney or Deputy without removing them from their role, and in other cases sought agreement from between co-attorneys about how they will work together in future, or an undertaking about the level of expenses and any future gifting.”
It goes on to say:
“In four attorneyship cases in 2011/2012, it has been possible to negotiate a Consent Order between the parties, which has then been submitted to the Court to be considered and approved by the Judge. This has often resulted in better outcomes for the client in terms of reducing legal costs and being able to retain family members in charge of affairs, no party has the stress of having to travel to attend a hearing and of course the time of the Court is not wasted.”
However, at the other end of the spectrum, where assets have been at risk of misappropriation, the OPG has not shied away from making emergency “without notice” applications under the Court Rule 81. 12 such applications were made in the course of the year. In a number of cases, the Deputy/attorney was suspended, and/or bank accounts frozen, pending the completion of OPG or in some cases, police investigation.
Initial concerns can be raised with the Compliance Unit of the OPG, by post or on their dedicated phone line 0115 934 2777. Where there are concerns as to abuse by attorneys or Deputies, we would recommend reporting the matter to the OPG and/or the police as soon as possible.
Despite improvements to the process the OPG acknowledge that the investigation process is often a long one. In some instances, the person will have enough evidence to make their own application to the Court for immediate or emergency Orders removing the Deputy and freezing funds. If that is the case Anthony Gold are experts in advising as to timely and cost effective action.
If you require any further information about any aspects of Deputyship work, Lasting Powers of Attorney and matters relevant to the Mental Capacity Act 2005, please contact our Court of Protection Team on 020 7940 4060 and we would be more than happy to assist.