If you hold a Lasting Power of Attorney in England or Wales, the Office of the Public Guardian has authority over you. Most attorneys have a vague awareness of the OPG, but relatively few understand what it can actually do, when it might get involved in their affairs, and what they are legally required to provide if asked.
This guide explains the OPG in plain English: what it is, how it operates, and what you should know about its powers as an attorney.
What is the OPG?
The Office of the Public Guardian is an executive agency of the Ministry of Justice. It was established by the Mental Capacity Act 2005 and began operating in 2007. Its primary purpose is to protect people in England and Wales who may lack the mental capacity to make decisions for themselves.
The OPG is responsible for:
- Registering Lasting Powers of Attorney and Enduring Powers of Attorney
- Registering deputies appointed by the Court of Protection
- Supervising deputies and, where concerns arise, attorneys
- Investigating complaints about attorneys and deputies
- Working with the Court of Protection when legal proceedings are needed
- Providing guidance and support to attorneys, deputies and the public
The OPG is not a court. It cannot make binding legal orders on its own. But it can apply to the Court of Protection, which can make orders including removing an attorney from their role.
The OPG and the Court of Protection
The OPG works closely with the Court of Protection, which is a specialist court that handles all matters relating to people who lack mental capacity. When the OPG investigates a concern about an attorney and finds that action is needed, it applies to the Court of Protection for an order.
The Court of Protection can:
- Make a declaration about whether a specific decision or action was lawful
- Suspend or revoke a Lasting Power of Attorney
- Remove an attorney from their role
- Appoint a professional deputy to replace an attorney
- Order an attorney to repay money they have misused
- Make orders about specific decisions, such as where someone should live or what medical treatment they should receive
The Court of Protection is not just a last resort. Applications can be made for guidance on difficult decisions as well as in response to wrongdoing. If you are ever in a situation where you are genuinely uncertain whether you have authority to act, an application for a declaration can provide clarity.
When does the OPG get involved?
The OPG can get involved with an attorney in several ways. Most of the time, its involvement is routine: registering the LPA, providing guidance when contacted by attorneys, and processing any changes. But it also has an active safeguarding function that can lead to formal investigations.
The OPG may open an investigation following:
- A complaint from a family member, friend, neighbour or professional
- A referral from a health or social care professional
- A report from a bank or financial institution
- A referral from a local authority
- The OPG’s own proactive compliance activities
- Information received from the police or other agencies
A safeguarding referral in practice
A district nurse visiting an elderly woman notices that she appears unkempt and that the home is not being maintained. She is aware that the woman’s son holds a Health and Welfare LPA and is responsible for her care arrangements. The nurse raises a safeguarding concern with the local authority, which refers the matter to the OPG. The OPG writes to the son requesting an account of the care arrangements and the reasoning behind them. The son has never kept any records. Even if the care arrangements are entirely appropriate, he cannot demonstrate this and the investigation becomes protracted and stressful.
What the OPG can ask for
When the OPG opens an enquiry or investigation, it has significant powers to gather information. It can ask for:
- All financial records, including bank statements, accounts, receipts and investment records
- A written account of specific decisions or transactions
- An explanation of how the attorney has been acting in the donor’s best interests
- Access to care home records, medical notes or social care assessments
- A schedule of assets owned by the donor
- Correspondence or communications relevant to the matter under review
The OPG can also appoint a Court of Protection visitor, either a special visitor (typically a medical professional) or a general visitor, to assess the situation in person. Visitors can visit the donor, interview the attorney, and report back to the OPG.
What happens if you do not cooperate?
Failing to respond to an OPG request or refusing to provide information is a significant problem. The OPG will treat non-cooperation as a further cause for concern and is likely to escalate the matter to the Court of Protection. In serious cases, the Court can make orders without the attorney’s cooperation, including suspension or revocation of the LPA.
Even where an attorney is not guilty of any wrongdoing, failing to engage with the OPG makes the situation far worse and far harder to resolve.
The OPG is not trying to catch attorneys out. The vast majority of investigations conclude without any adverse finding. But the attorneys who navigate OPG involvement most smoothly are those who can produce clear, contemporaneous, well-organised records promptly when asked.
The OPG helpline
The OPG operates a public helpline for attorneys, deputies, donors and members of the public. If you have a question about your role as attorney, whether you have the authority to do something, or what records you should be keeping, the helpline can provide guidance.
The helpline cannot provide legal advice, but it can clarify procedural matters and point you towards the right resources. Using it when you are uncertain, rather than proceeding and hoping for the best, is always the right approach.
Be ready if the OPG ever asks
Wardly creates a tamper-evident, exportable record of every decision you make under the LPA. If the OPG ever contacts you, your records are already prepared.
Start your free logFrequently asked questions
Does the OPG supervise all attorneys?
The OPG actively supervises all Court of Protection deputies. It supervises attorneys where a concern has been raised, or where conditions on an LPA require it. Most attorneys operate without active OPG supervision, but the OPG retains the ability to investigate at any time.
Can the OPG remove me as an attorney without going to court?
No. The OPG cannot revoke an LPA on its own. Revocation requires a Court of Protection order. However, the OPG can apply to the Court for an order, and the Court can act quickly in urgent cases.
What should I do if I receive a letter from the OPG?
Read it carefully and respond promptly. If it is a routine enquiry, respond cooperatively and provide what is asked for. If it is more serious, consider taking legal advice before responding. Do not ignore it.
Is there a way to contact the OPG proactively?
Yes. The OPG has a public-facing helpline and its website contains extensive guidance for attorneys. If you are uncertain about any aspect of your role, making a proactive enquiry is far better than making a decision in ignorance and regretting it later.
Can I report a concern about another attorney to the OPG?
Yes. If you are aware that someone is acting improperly as an attorney, whether financially or in terms of welfare, you can report your concerns to the OPG. It takes all safeguarding referrals seriously.