We are often asked about how and why we do safeguarding investigations at OPG. This is completely understandable as we hear about elder abuse and fraud cases frequently in the news.
To help explain how and when we do investigations, I need to briefly explain the legal framework we follow. Our ability to investigate concerns about lasting/enduring powers of attorney and deputyships comes from the Mental Capacity Act (MCA) 2005.
The central assumption of the MCA is that people can make decisions for themselves. If they can’t, then they should be supported to make decisions by themselves. As a last resort, someone else can make decisions for them in the least restrictive way if they have the appropriate legal authority.
Mental capacity can vary and it is important not to label people as not having capacity to make any decision when they are able to make some choices for themselves. Everything we do at OPG must balance championing an individual’s right to autonomy while protecting adults at risk from abuse.
Our safeguarding role
We take our safeguarding role very seriously. The Public Guardian is authorised to investigate allegations of abuse by court appointed deputies and attorneys who are acting under a registered lasting/enduring power of attorney or court order. Anyone who has concerns about a deputy or attorney can report them to us. We will carry out an investigation if there are grounds to suggest that the best interests of the person at risk are not being met.
When we begin an investigation, one of the first things we try to do is assess the individual’s mental capacity – we should not be acting on a case where someone can act for themselves. This would not be empowering the individual and would contradict the MCA. We need to balance treating all concerns seriously, with people’s right to a private and family life, to ensure that our investigations are proportionate. Every case unique and is decided on its own merits.
We often get asked about why there has been year on year increases in the number of investigations we do. There are a couple of reasons for this:
Increasing numbers of powers of attorney
As the number of registered powers of attorney and deputyship orders has increased over time, so has the number of investigations. For example, in 2018/19 we did 2,883 investigations, compared to 1,871 in the previous year. On the face of it, it looks like a big increase.
However, when you consider at 31 March 2019 we had 3,906,536 registered powers of attorney and deputyship orders, the number of investigations we carried out was only 0.07% of the total, and it was only 0.06% of the total the year before.
Continuous improvement of our procedures
The way we investigate concerns has changed considerably over the years. When an individual raised a concern, we used to request significant amounts of information before we would investigate. This was often difficult for the concern raiser to provide to us. All that is required for a concern to be investigated by OPG is:
- we have enough details to confirm the person at risk has a registered power of attorney or deputyship order
- the concern relates to the powers the attorney/deputy holds under their registered power
- the concern is against the attorney/deputy’s behaviour, not that of a third party
- the concern occurred whilst the attorney or deputy was acting in their capacity as attorney/deputy for the person at risk
- the concern raiser believes that the person at risk did not have capacity to make the decision at the time it was made and/or believes that the person at risk was coerced.
We will investigate any case where we have jurisdiction to act.
Carrying out an investigation does not necessarily mean there has been fraud or abuse. Often the outcome of investigations shows there is nothing wrong happening. In some instances, an investigation may not result in any action being taken against the attorney/deputy but may result in providing guidance to the donor or the attorney/deputy.
In other instances, mediation between the attorney/deputy and others interested in the care of the person at risk may be appropriate.
Working collaboratively to support adults at risk
But this doesn’t mean we’re complacent. We refer concerns to other authorities, for example social services or the police, where we’re not able to legally act. We’re also receiving more referrals from other agencies.
Our safeguarding strategy emphasises our commitment to work in cooperation with other agencies who have a duty to protect people at risk of abuse or neglect.
If you have any concerns about the actions of a deputy or attorney, please contact OPG's safeguarding team.
19 comments
Comment by concerned family member posted on
Thank you Ria for an informative post. I have a few observations and questions.
With regard to safeguarding, I think it is really important that people are aware that you undertake no routine accountability checks on those individuals you have registered as POA to ensure a vulnerable individual's assets are not misappropriated on a day to day basis. If this is incorrect I would be pleased to be corrected.
You have stated you will investigate any case where 'there is justification to act', could you define 'justification' please and whether the decision to investigate is ultimately discretionary?
With regard to what is required for a concern to be investigated. Once an individual has POA, data protection laws prevent any other person such as a concerned family member from obtaining any evidence such as bank statements or relevant financial detail to provide to you as evidence. Obtaining this information should be central to your remit and not that of concerned third parties with limited powers.
You are currently conducting an investigation on the individual with POA for my mother who has dementia and is now residing in a state run care home until this matter is resolved. I have not received any communication from OPG for 4 months and have not been a successful recipient of your call back facility.
Judging by the 0.07% investigation figure you have provided, I can only conclude that the figure for withdrawing authority from inappropriate POAs to be even lower. It is with genuine regret that I conclude such safeguarding issues are better handled by the police authority.
Based on my own experiences, I feel that your 'safeguarding' strategy is a paper tiger and seriously flawed due to the limited powers afforded to you via Westminster.
Comment by Laura Crouch posted on
Good afternoon,
Thank you for your message we're always open to honest feedback.
I'm very sorry to hear about the issues you’re facing during this time. We will look into the particulars of the questions around our jurisdiction and justification to act.
We would like to look into the investigation for you and find out where this has got to. Please can you email: opgcomplaints@publicguardian.gov.uk and let us know your case reference number, attorney name and address if possible. This will allow us to look into the details of the case and what actions are being taken.
Further information on our complaints process is available at: https://www.gov.uk/government/organisations/office-of-the-public-guardian/about/complaints-procedure
We hope to have this resolved as soon as possible. Please don't hesitate to get in touch with us in the meantime if you have any further questions.
Laura
Comment by Another concerned family member posted on
Was this resolved to your satisfaction by the Office of the Public Guardian
Comment by concerned family member posted on
Hi Laura, thank you for this it's much appreciated.
When you have looked into these issues I would be pleased to receive a response to the specific questions I raised regarding Ria's article on safeguarding.
Best regards.
Comment by Laura Crouch posted on
Good morning,
Jurisdiction to act means that:
• we have enough details to confirm the person at risk has a registered power of attorney or deputyship order
• the concern relates to the powers the attorney/deputy holds under their registered power
• the concern is against the attorney/deputy’s behaviour, not that of a third party
• the concern occurred whilst the attorney or deputy was acting in their capacity as attorney/deputy for the person at risk
• the concern raiser believes that the person at risk did not have capacity to make the decision at the time it was made and/or believes that the person at risk was coerced.
Discretionary – we will always make enquiries – but sometimes those enquiries mean a full ‘investigation’ is not necessary – e.g. if social services can resolve a concern for us immediately, we wouldn’t proceed to a full investigation.
I hope this helps.
Laura
Comment by Pamela Razey/Karen Lovelock posted on
Very interesting reading. But you try finding out any information from OPG which is impossible. We have asked many times why we were investigated in the first place and OPG refuse to answer. We want to know the allegations made at the beginning or information received BUT every time the response is negative from OPG. What are you hiding ?
Comment by Andrea Breau posted on
Hi there - thanks for your comment.
We do not routinely provide updates during an investigation. We will make enquiries with various sources and may return to an individual if it’s necessary to do so. Our aim is to obtain as much information as quickly as we can. It is important that we protect the personal data of third parties involved in an investigation, such as attorneys, deputies, family members and the concern raiser. This means that the amount of information we can disclose will be largely limited to what they already know about the situation, along with a summary of the investigation findings.
I will pass your feedback to our complaints team for their information. If you would like to follow this up with them directly you can find information on our complaints process at: https://www.gov.uk/government/organisations/office-of-the-public-guardian/about/complaints-procedure
Comment by Andrew Guy posted on
Good Morning. Reference to the number of investigations carried out namely 2,883 investigations. How many were referred to the Police. How many were convicted. Was legislation namely the Proceeds of crime act enforced by the OPG to Recoup stolen funds. Accepting the number of LPA`s overseen by the OPG, and the number of referrals to them, There appears very little action to prosecute offenders, where clearly Huge sums of monies are Misappropriated by persons in a position of trust, who by your own report, NO Checks are carried out for suitability to carry out the role. Such as credit checks Bankruptcy, and Criminal record checks. Andrew Guy
Comment by Andrea Breau posted on
Thanks for your comment. It is true that we complete nearly 3,000 investigations per year. However, in most cases we find that there is no case to answer and the concern is not upheld. Only 25% of cases end up in the Court of Protection; this can be for many reasons, such as asking the court to clarify an issue, not just to seek removal of an attorney due to wrongdoing. Police referrals are not appropriate in the majority of cases, but if we believe that the abuse was potentially criminal, a police referral is always completed. A person cannot act as an attorney if they are bankrupt.
One of the main principles of the Mental Capacity Act (2005), which is the legislation that governs LPAs, is that people have the right to make their own choices, even if others may disagree with this choice or see it as an unwise decision. So, if someone wishes to appoint a particular person as their attorney, and they have mental capacity to make this decision, they are entitled to do so. It is a private contract which they choose to make with another person.
Comment by Alex Savill posted on
Good afternoon,
I wanted to find out the standard protocol/approach by the OPG when you receive a deed of revocation?
Thanks,
Comment by Laura Crouch posted on
Good morning,
Thank you for your comment, i will look into the protocol for you and get back to you as soon as possible.
Laura
Comment by Jack Preston posted on
It states, you should not be acting on a case where someone can act for themselves. However my complaint is that someone who can act for themselves has had an LPA registered for them without their consent and has no copy of the LPA for reference and therefore no knowledge of the details of the persons involved with the fraud. Then upon contacting the OPG to ask the name of the Certificate provider I was told after about 2 months that the information was restricted due to data protection laws. You WILL give the name of the Attorney, but you will NOT name the person who signed the form to attest they had given good counsel to the donor before he/she signed to prevent any coercion. This just assists the fraud. YOU should make ALL information available. Why should the identity of the certificate provider be a secret !
Comment by Laura Crouch posted on
Good morning,
I'm sorry to hear your issues. I have contacted the relevant team to find out the best process for you and will get back to you as soon as possible on that.
in the meantime you can get in touch with the complaints team at opgcomplaints@publicguardian.gov.uk if you would like to take this further.
Thanks,
Laura
Comment by Laura Crouch posted on
Good afternoon,
You are able to revoke an LPA using the dates of registration which you can find by searching the register of attorneys - https://www.gov.uk/government/collections/searching-our-registers-of-attorneys-and-deputies
Once you have the dates you can send us the information asking for the document to be removed. Here is a guide on revoking an LPA - https://www.gov.uk/power-of-attorney/end
I hope this is helpful.
Laura
Comment by Jack Preston posted on
No, your reply is not helpful as I am fully aware of how to cancel the LPA. The reply I want is to the question I asked, ie. who was the 'certificate provider'. Why should this be such a big secret ?
Comment by Laura Crouch posted on
Good afternoon Jack,
This would be due to GDPR guidelines on what information we can show through a search of the register.
Kind regards,
Laura
Comment by concerned family member posted on
My concerns regarding my mother with dementia were raised with OPG in March 2019. Her assets are still being misappropriated by the LPA.
Before undertaking any element of the LPA process please please take the time to research what OPG actually do, can do and will do with regard to the 'safeguarding' champion stance they self promote.
Comment by James Orton posted on
Good Afternoon. My sister and I have LPA over our mother's affairs since 2009 but only really needed to use them since our father died in July 2014. We have just received letters saying we under investigation. We have had to use all of her savings to pay for the care home and to keep her in the way my father would have wanted because the local council are reluctant to help out. My question is "will the fact we had to spend her savings to keep comfortable be taking into account during the investigation"?
Comment by Laura Crouch posted on
Good afternoon,
OPG operates under the Mental Capacity Act 2005 (MCA) in England & Wales, which provides the Public Guardian his powers and sets out the principles to which everyone should abide with regards to those who lack capacity and making decisions on their behalf. Acting in the persons best interest is one of the five prinicples of the MCA outlined in this link you might find useful - https://www.gov.uk/government/collections/mental-capacity-act-making-decisions#mental-capacity-act-code-of-practice.
We are unable to comment specifically on ongoing investigations but hope the information above is helpful.
Laura