The statutory role of the Public Guardian.
The Office of the Public Guardian acts on behalf of the Public Guardian (who is in effect the Chief Executive of the OPG and has a statutory role of the Public Guardian), in the following ways:
Office of the Public Guardian Investigations.
OPG can carry out an investigation into the actions of a deputy, a registered attorney (LPA or EPA) or someone authorised by the Court of Protection to carry out a transaction for someone who lacks capacity, and report to the Public Guardian or Court of Protection. How matters are investigated will be decided at the start of each case. Usually investigations will include contacting people and agencies linked to the client, requesting copies of accounts and financial transactions, reviewing decisions and reviewing our file records.
The the role of the Public Guardians office allows them to ask a deputy or attorney to provide specific information or documents when we investigate complaints or concerns.
As part of an investigation, the staff of the Public Guardians office may visit a client or deputy, or a donor or attorney of a registered EPA or LPA. Visits are usually carried out by a Court of Protection visitor, and are intended to ensure things are as they should be.
When the Office of the Public Guardian cannot investigate:
The Public Guardian doesn’t have the statutory authority to carry out investigations in some cases. However, even if they cannot act directly, OPG and/or the Court of Protection may still have some involvement in an investigation being carried out by another party.
OPG doesn’t have legal power to investigate in these cases:
- Concerns about the actions of attorneys acting under an unregistered Enduring Power of Attorney.
In this case they usually refer the matter to adult social services for an investigation. If the donor lacks capacity to make decisions, which means that the EPA should have been registered, the OPG may advise that an application is made to the Court of Protection to revoke the EPA and appoint a deputy.
The court will sometimes order the Public Guardian to provide a report under Section 49 of the Mental Capacity Act. If the donor has capacity, OPG may suggest that a local agency or solicitor or a third party could help them to decide whether to revoke the EPA and make an LPA.
- Concerns about the actions of former deputies or receivers.
If there are concerns about the actions of a deputy whose appointment has ended, or a former receiver (someone whose appointment ended before 1 October 2007), OPG will usually advise that it’s a matter for the current deputy, if there is one, to deal with. This includes where the former deputy or receiver has died.
If the Court of Protection ends a deputyship because of concerns about the deputy’s actions, the court may order any new deputy to investigate the former deputy or receiver.
- Sometimes concerns are raised after the client has died.
Any deputyship ends when the client dies. It’s then the responsibility of the client’s personal representatives to deal with any investigation. In cases where a deputy has been discharged, or the deputy or client has died, and OPG has concerns about possible financial abuse, the OPG can call for a final report from the former deputy (or the personal representatives of the deputy if the deputy has died).
If the Public Guardian is not satisfied with the report, they may apply to the Court of Protection for enforcement of the security bond (a sum of money, a bit like an insurance policy, that’s paid to the bond provider to protect a client’s money) under Regulation 40 of the Public Guardian Regulations 2007. This only applies to deaths or discharges after 1 October 2007.
- Concerns about the actions of people other than deputies and attorneys.
In this situation, OPG will refer the concerns to adult social services for investigation. If the adult at risk has a deputy then OPG will ask to be kept informed of the situation. We could assist by monitoring the situation through supervision of the deputy and visits to the adult at risk from a Court of Protection visitor.
- Concerns about the actions of someone acting under certain types of Court of Protection short orders
Short orders were granted by the Court of Protection before the Mental Capacity Act came into force in October 2007. The Public Guardian does not have powers to investigate all short order situations. Where they don’t have authority, they usually refer the concerns to adult social services for an investigation. This may result in an application being made to the Court of Protection to revoke the order and, if necessary, a court order to appoint a deputy.
The application could include authority to look into the transactions of the person acting under the short order.
The statutory role of the Public Guardian.
Concerns about persons acting under an appointeeship made by the Department for Work and Pensions (DWP)
In these circumstances, OPG will refer the matter to DWP and make a referral to adult social services for investigation under their procedures.