An attorney is appointed by an individual (the donor) who would like them to act and make decisions on their behalf when they lose capacity to do so themselves or when they no longer wish to make decisions. Attorneys can be appointed to deal with decisions relating to the donor’s health and welfare and/or property and finance. An attorney can only be appointed if the donor has capacity.  

A deputy is someone appointed by the Court of Protection (COP) to manage the affairs of another who has lost the capacity to do so themselves and does not have an attorney in place.

Attorneys and deputies are required to act within the powers conferred to them through either a power of attorney, or deputyship order issued by the Court of Protection. They must also consider the preferences of the donor, in so far as they are able to communicate them or had communicated them prior to losing capacity. Importantly, attorneys and deputies must act in the donors’ best interests when making decisions on their behalf. For more information on attorney and deputy responsibilities, take a look at this blog post.

If there are signs that an attorney or deputy is abusing their position, a referral may be made to the Office of the Public Guardian to consider that individual’s conduct, and their appropriateness to carry on in their role.

The first step is to investigate the money that has been taken and why. Bear in mind the duties of an attorney or deputy to act in the best interests of the donor and take advice as soon as possible. It is important to raise your concerns with the OPG to ensure all avenues of investigation are pursued.

Attorneys and deputies have a duty to act in the best interest of the donor at all times. If an attorney or deputy is not acting in the donor’s best interests, an application can be made for their removal. Common grounds for removal include;

• not acting in the donor’s best interests;
• failing to keep accounts or financial records;
• unauthorised gifts or loans; and
• acting beyond the scope of their authority. 

It is often necessary to obtain legal advice on the specific concerns to establish whether the concerns held are sufficient to apply for the attorney or deputy’s removal. 

Yes, the first step is to investigate the decision you dispute (why was it made, when, etc.) and consider in light of the attorney’s/deputy’s duties and the best interests of the donor. It may also be appropriate to ask the Office of the Public Guardian (OPG) to open an investigation.

Yes. It is necessary to establish sufficient grounds for any objection. It is important to bear in mind the duties of an attorney when considering the grounds for objection. We recommend you take advice on the merits of any objection at the earliest opportunity. For more information on challenging the appointment of an attorney, take a look at this blog post.

If an attorney is already in place and the donor still has mental capacity, the donor can revoke an earlier lasting power of attorney (LPA). A new LPA can then be made in accordance with the donor’s wishes. 

If the donor no longer has capacity, it is not possible to revoke or make a new LPA and an application to the Court of Protection is required to remove an attorney. 

Deputies are court appointed and can only be removed by way of an application to the Court of Protection. 

A gift made by an attorney or deputy may be challenged depending on the circumstances. The first step is to investigate and consider if the gift(s) made were valid. If the gift(s) were not valid steps can be taken to recover the gift(s) and return them to the donor’s estate.

The answer is maybe. It will depend on the decision you are taking, the value of the decision if it involves money and importantly the impact it would have on the donor and their estate and/or wellbeing. It will also depend on the powers conveyed in the Llasting Ppower of Aattorney or Ddeputyship Oorder and any limitation on those powers. 

Where it is found that the individual has abused their position, the Office of the Public Guardian has the following powers:

• Instructing the attorney or deputy to reimburse the person for whom they were acting.
• Informing the police if they believe a crime has been committed.
• Reporting the incident to external agencies, including professional bodies.
• Referring the case to the Disclosure and Barring Service, which may mean the person reported can no longer work with adults or children.
• Applying for the removal of an attorney/deputy.

When a referral has been made to the Office of the Public Guardian, a questionnaire may be sent to the attorney or deputy to provide them with an opportunity to reply to any queries that have been raised. It is vital to cooperate and provide a complete, honest account when responding to this questionnaire.

By getting in touch with a qualified solicitor, they will be able to provide you with advice on completing this questionnaire, and with any subsequent investigation.