Yes. The Office of the Public Guardian has the power to investigate any attorney at any time, and it does not need to wait for a formal complaint to do so. Investigations have been rising year on year, and many attorneys are caught completely off guard when contact arrives.
Understanding what the OPG can and cannot do, what typically triggers an investigation, and how you can protect yourself is something every attorney should know before they ever need it.
What is the OPG's role in relation to attorneys?
The Office of the Public Guardian is the government body in England and Wales responsible for registering Lasting Powers of Attorney and supervising those who act under them. It operates under the Mental Capacity Act 2005 and reports to the Court of Protection.
Its primary purpose is to protect people who lack the mental capacity to make their own decisions. When something goes wrong, or when there is a concern that an attorney may not be acting properly, the OPG is responsible for investigating and, if necessary, referring the matter to the Court of Protection.
What can trigger an OPG investigation?
An investigation can be triggered by several different routes. The most common are:
- A complaint made by a family member, friend, neighbour or professional who has a concern about how the attorney is acting
- A referral from a health or social care professional, such as a GP, social worker, or care home manager
- A report from a bank or financial institution flagging unusual account activity
- A referral from another government body, such as the local authority or the police
- The OPG’s own compliance monitoring activities, including proactive reviews
Importantly, the OPG does not need a formal allegation to open a safeguarding enquiry. If someone raises a general concern, or if the OPG has reason to believe all is not well, it can investigate. It does not have to find wrongdoing to justify looking.
A real scenario
A daughter acting as attorney for her father begins withdrawing larger-than-usual sums from his account each month. His bank flags the transactions. The OPG receives a referral and opens an enquiry. The daughter has been using the money entirely legitimately, paying for increased care costs, but she has no records to show this. Despite acting honestly, she faces months of scrutiny and enormous stress because she cannot demonstrate that the withdrawals were in her father’s best interests.
What powers does the OPG have during an investigation?
The OPG has significant powers when it conducts a review or investigation. It can:
- Request to see all financial records, bank statements, receipts and accounts
- Ask the attorney to provide a written account of specific decisions or transactions
- Appoint a Court of Protection visitor to assess the situation in person
- Interview the donor if they are able to participate
- Require access to care home records, medical notes or other relevant documents
- Apply to the Court of Protection to have the LPA suspended or revoked
- Refer matters to the police if there are concerns about criminal conduct
The OPG cannot force you to cooperate, but failing to respond to a request or refusing to provide information is itself a red flag that can escalate the investigation significantly.
What outcomes can an OPG investigation lead to?
The range of outcomes is wide. In many cases, an investigation finds that the attorney has been acting appropriately and the matter is closed with no further action. But where the OPG has concerns, outcomes can include:
- A formal warning or caution
- Conditions being placed on how the LPA can be used
- The LPA being suspended while further enquiries are made
- An application to the Court of Protection to revoke the LPA entirely
- The Court of Protection appointing a deputy to replace the attorney
- Referral to the police where there is evidence of financial abuse or fraud
Being removed as an attorney by the Court of Protection is a serious matter. Beyond the personal impact, it may be recorded and in some circumstances reported.
In the OPG’s published guidance, it states clearly that attorneys who keep clear, contemporaneous records are far less likely to face formal action, even when concerns are raised. Good records do not just help you defend yourself. They often prevent an investigation from escalating in the first place.
How records protect you
When the OPG makes enquiries, your records are what it looks at first. If you can show a clear, dated log of every significant decision, with your reasoning, the alternatives you considered, and who you consulted, the vast majority of complaints will be resolved quickly and in your favour.
Conversely, if your only evidence is your own recollection of events, or a partial set of bank statements with no accompanying explanation, even a complaint made in bad faith can become very difficult to deal with. Investigations are stressful, time-consuming and, if they proceed to the Court of Protection, expensive.
The best protection is also the simplest: keep records properly and keep them from the start.
Records that hold up under scrutiny
Wardly gives you a tamper-evident log of every decision, with timestamps, hash verification, and an exportable evidence pack. If the OPG ever asks, you will be ready.
Start your free logFrequently asked questions
Can the OPG investigate me without telling me first?
The OPG can open a preliminary enquiry before contacting you directly. In most cases, you will receive a letter asking for information or an explanation. However, if there are urgent safeguarding concerns, it may act more quickly, including by seeking an emergency application to the Court of Protection.
Can I be investigated even if I have done nothing wrong?
Yes. An investigation can be triggered by a complaint from a family member who is simply unhappy with a decision you made, even a perfectly reasonable one. In those cases, your records are what closes the investigation in your favour.
How long does an OPG investigation take?
It varies considerably. A simple enquiry with clear records can be resolved in a few weeks. A complex investigation, particularly one that proceeds to the Court of Protection, can take many months or longer.
Do I need a solicitor if the OPG contacts me?
Not necessarily for an initial enquiry, but if the matter escalates or if a Court of Protection application is made, taking legal advice is strongly recommended. Some solicitors specialise in Court of Protection work.
What if the donor themselves complains about me to the OPG?
The OPG takes complaints from donors seriously. If the donor has capacity and raises a concern, the OPG will investigate. If the donor lacks capacity, the OPG will still investigate if there is any suggestion their interests are not being protected. Again, your records are your best response.