Attorneys and Deputies are legal roles entrusted with a great deal of power. The former are appointed under a Power of Attorney, and are authorised to make decisions on behalf of the person who granted the power (called the ‘Donor’). Attorneys might make decisions because the Donor has lost the ability to make decisions for themselves, or because the Donor wants someone else to handle their financial affairs.
Deputies fulfil a similar role to Attorneys, but are appointed by the Court of Protection under a Deputyship Order. Deputies also make decisions on behalf of someone else, but that person will be in a particularly vulnerable position, because Deputyship Orders are only made when the person in question has lost mental capacity.
Our factsheet on ‘Powers of Attorney v Deputyship Orders’ contains more information about these two legal arrangements, and of the differences between them.
Because of their position of trust, Attorneys or Deputies who abuse their powers (or who otherwise fail to perform their duties properly) can cause serious difficulties to the protected person for whom they are acting.
The Office of the Public Guardian (OPG) is responsible for supervising Attorneys and Deputies, safeguarding the rights of the protected people at the centre of Powers of Attorney and Deputyship Orders. Last month, the OPG issued guidance to help explain how they deal with concerns over abuses of power by Attorneys or Deputies. We will look at this guidance as part of this blog post.
How might an Attorney or Deputy misuse their powers?
Attorneys and Deputies are under many duties towards the people for whom they act. The Power of Attorney or Deputyship Order will define the specific terms of their role, but they must also follow legal obligations set out elsewhere, such as the Mental Capacity Act 2005 in particular.
Some examples of how an Attorney or Deputy may fail in their duties towards the protected person include:
- Making decisions which are not in the best interests of the protected person
- Misusing the protected person’s money or property
- Neglecting the protected person’s welfare
- Taking action which is beyond the scope of the terms of the Power of Attorney or Deputyship Order. For example, using a Property and Financial Lasting Power of Attorney to make decisions about the protected person’s health and welfare.
- Using a Power of Attorney illegally, for example, where the power is not valid, has expired, or has not been registered when required.
What can I do?
In many cases, the protected person under a Power of Attorney or Deputyship Order may not be aware of anything wrong – especially if their mental capacity is such that they are completely reliant on the Attorney or Deputy. Therefore, if you believe an Attorney or Deputy is misusing their powers, it is important to take action.
In some situations, it may be possible to discuss your concerns with the protected person themselves. However, where their mental capacity means this isn’t feasible, you should consider contacting the OPG.
Reporting your concerns to the OPG
By reporting the situation to the OPG, you allow them to impartially judge whether there is cause for concern and whether any action against the Attorneys or Deputies is necessary.
When contacting the OPG, you will need to provide details of your concern including:
- The protected person’s details (including name, address, and date of birth)
- The date you first became aware of your concern
- Whether the situation is ongoing
- Any evidence you have to support your concern
- Any details you know regarding the protected person’s mental capacity
- Your own contact details
The OPG’s contact details for reporting your concern can be found by following this link.
When conducting their investigation, the OPG will contact the Attorneys or Deputies for a response, requesting an explanation or evidence. They may also refer details of the situation on to other agencies or the Court of Protection.
At the end of the investigation, the OPG may take action against the Attorneys or Deputies involved. This might include applying to the Court of Protection for measures to protect the vulnerable person.
If you are worried about any negative consequences of making a report, the OPG also confirms that they will protect the information of anyone reporting a concern to them, unless asked otherwise.
How often do these kinds of problem arise?
The OPG’s annual report for 2018/19 shows that investigations into Attorney and Deputy behaviour are on the rise – increasing from 1,871 in 2017/18 to 2,883 in 2018/19.
However, the volume of Powers of Attorney and Deputyship Orders is also increasing, and total investigations in 2018/19 represent only 0.07% of all registered Powers of Attorney and Deputyship Orders.
The OPG have also reported that, of those investigations, 59% required no action to be taken against the Attorneys or Deputies in question.
This suggests that the chance of someone experiencing a misuse of power by their Attorneys or Deputies is extremely low. Nonetheless, given the vulnerability of many people who are subject to a Deputyship Order, or who grant a Power of Attorney, it is important to look out for any signs of misuse and to take action where there is cause for concern.
What if my Attorneys are abusing their powers?
If you granted a Power of Attorney and you are concerned about your Attorneys’ conduct, there are other legal avenues you can pursue, besides reporting the matter to the OPG.
Your first step may be to discuss the matter with your Attorney or Attorneys directly. However, it is important to be able to trust your Attorneys and if their actions have shaken this trust, it may be preferable to stop them acting altogether. If you wish to do this, there are two options which may be open to you:
- If you appointed at least two Attorneys to act ‘jointly and severally’ in your Power of Attorney, you can remove one of them by filing a Partial Deed of Revocation with the OPG. This would mean your Power of Attorney would continue but the removed Attorney would no longer be able to act. However, this option is not available if your Attorneys are only able to act ‘jointly’ under the terms of the Power of Attorney. Also, if you wanted to appoint a ‘replacement’ Attorney you can only do so by making a new Lasting Power of Attorney.
- You can revoke your entire Power of Attorney. This would involve filing a Deed of Revocation with the OPG.
Because you granted the Power of Attorney in the first place, you are within your rights to revoke it at any time – you do not need your Attorneys’ consent to do so. However, you must have the mental capacity at the time to make this decision to revoke your Power of Attorney.
In any case, before you take any action, it is recommended that you seek specialist legal advice. Please do not hesitate to contact us if you wish to discuss this.
How Roche Legal can help
If you are worried that a loved one is being taken advantage of by their Attorneys or Deputies, we can give legal advice about any concerns you may have.
Alternatively, if you are considering making a Lasting Power of Attorney, we can advise you on choosing your Attorneys to help prevent any such situations from occurring in future.
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