A recent freedom of information request has revealed that the Office of the Public Guardian (OPG) carried out over 40% more investigations in the 2017/2018 financial year in to the actions of attorneys and deputies compared with the previous year. These investigations take place when there are allegations or concerns of abuse of such roles.
Lasting Powers of Attorneys (“LPAs”) allow selected individuals such as family, friends or professionals to manage the personal and financial affairs of a person (“P”) with their permission or without it should that person lose the capacity to do it themselves. Where someone has already lost the capacity to manage their affairs, a deputy (again a family member, friend or professional) may be appointed by the Court of Protection under a Deputyship.
The role of attorneys and deputies is governed by the Mental Capacity Act which at it’s very basic level provides that:-
1) It must be assumed that P has the capacity to make a decision themselves, unless it is provided otherwise, i.e. even if an attorney or deputy is appointed, P should be given the opportunity to make a decision themselves.
2) Where possible, P must be helped to make their own decision. This means taking steps to help them understand the decision (e.g. breaking the decision down into simple terms) and/or helping them communicate their understanding (e.g. providing paper to write or draw on if P is unable to speak).
3) P should not be deemed to lack capacity to make a decision just because they make an unwise or strange decision.
4) In the event that P is deemed to lack capacity, any decision made on their behalf must be in their best interests.
5) Any decision that is made should be the least restrictive of their basic rights and freedoms.
All too often we now hear that vulnerable and elderly people have suffered financial abuse by those that had been trusted to act as attorneys or deputies. Often such abuse is due to the fact that although the forms for appointing attorneys and deputies are generally straightforward to complete, they do not fully explain the necessary process and record keeping that should be carried out when making decisions for P. Therefore, attorneys and deputies are not aware of the underlining provisions of the Mental Capacity Act and the responsibilities they have in agreeing to take up such roles.
In light of the increase in the number of investigations, a plea has been made by various organisations dealing with vulnerable and elderly people for people to instruct a solicitor to assist with the process of creating, registering and then using a LPA or Deputyship so that those involved are fully aware of the responsibilities involved.
Veronica Mullins, who was specially appointed by the Court of Protections to be a Panel Deputy, is a partner in our firm. She is one of only a handful of professionals appointed to this role.
For more information about LPA’s, deputyships or any concerns of financial abuse of a vulnerable person please contact our Court of Protection team on 01484 821 500, email willsandprobate@ramsdens.co.uk or text LAW to 67777 to book a free information session at any of our offices.