Office of the Public Guardian

3. Mr X complains that the Office of the Public Guardian (OPG) had no justification to pursue its investigation into his mother’s capacity to execute her Lasting Power of Attorney for Property and Financial Affairs (LPA PFA) following the dispute resolution hearing that was held in August 2023, and that relevant evidence was not included in the investigation.

4. Mr X also complains that the OPG conducted a financial investigation relating to transactions on his mother’s bank account.

5. Mr X says that this has caused him considerable stress and has resulted in a significant amount of time wasted, in responding to the court application. He adds that it has also negatively affected his attempts to have the restrictions removed from his mother’s account.

6. By bringing his complaint to us, Mr X is seeking service improvements and acknowledgment of the service failures.

7. Following the registration of an LPA, Mr X has been appointed as his mother’s attorney. When this was set up, his mother’s GP formally confirmed that she had chosen to do this freely and had capacity to enter into the arrangement.

8. Later, one of Mr X’s relatives said they were worried that, despite the GP’s confirmation, Mr X’s mother may not have had capacity when she agreed to the arrangement. Because of this, the OPG decided it needed to look into what had happened.

9. In May 2023, the OPG tried to contact the GP to ask for more information about Mr X’s mother’s capacity at the time the LPA was set up, but it did not get a reply. Because it could not get the GP’s further input, the OPG asked a court-appointed Special Visitor (a professional, usually with medical or mental capacity expertise, appointed to assess the donor when there are concerns about their ability to make decisions) to visit Mr X’s mother and assess her capacity independently. Based on the evidence they reviewed (including information from independent bodies such as the Local Authority), the Special Visitor said it was likely that Mr X’s mother did not have capacity at the time Mr X was appointed. The OPG therefore planned to apply to the Court of Protection to cancel the appointment.

10. In August 2023, a dispute resolution hearing took place involving Mr X and the relative who had raised the concern about capacity. This was separate from the OPG’s work. We understand that the relative withdrew their allegations and the Court went on to decide that the LPA was a valid document.

11. We further understand that, around this time, Mr X’s mother’s bank had restricted Mr X’s ability to use her account. After the dispute resolution hearing, the Court said it could not see a reason for the restriction to stay in place. However, the bank did not remove it. The information we have seen shows the bank wrote to Mr X in September 2023 saying it was carrying out its own review and would keep restrictions in place until that review was finished. The bank also said Mr X should contact it if his mother had essential spending that the bank could help with.

12. Mr X believed that once the Court confirmed the appointment was valid, the OPG should have closed its investigation. However, it seems the OPG viewed matters differently. Because it had not been part of the dispute resolution hearing, it was concerned the Court may not have seen the Special Visitor’s conclusions, which the OPG considered to be relevant evidence. For that reason, the OPG decided to continue investigating.

13. In June 2024, Mr X’s mother’s GP replied to the questions the OPG had asked previously. The GP said that, in their view Mr X’s mother did have capacity when she agreed to appoint Mr X. The OPG passed this information to the Special Visitor and asked them to reconsider their earlier assessment in light of the GP’s comments.

14. In July 2024, an addendum to the original special visitor’s report (14 June 2023) was submitted, incorporating the information from the GP. After this, the OPG formally withdrew its objection and accepted that Mr X could act for his mother.

15. The Court of Protection (COP) subsequently ruled in August 2024, that the application for a determination regarding the LPA PFA could be withdrawn.

16. Mr X subsequently complained to the OPG. He said the OPG should not have kept investigating after the dispute resolution hearing and that continuing had not been in his mother’s best interests. He also said the OPG had unfairly investigated his mother’s finances which, he believed, had led to the bank restricting the account.

17. The OPG did not uphold Mr X’s complaint. It explained that it continued its work after the dispute resolution hearing because it was worried the Court may not have been shown the Special Visitor’s report. The OPG also said it had not investigated Mr X’s mother’s finances—only the concerns about her capacity. It said the decision to restrict the account was the bank’s and if Mr X wanted to challenge that, he would need to take it up with the bank.

20. To put this complaint, and our decision, into context, it would be helpful to say more about the OPG’s role and responsibilities regarding LPAs.

21. The overall role of the Office of the Public Guardian (OPG) is to protect people in England and Wales who may not have the mental capacity to make certain decisions for themselves, such as about their health and finance. It carries out its duties in line with the Mental Capacity Act 2005.

22. One of the roles of the OPG is to keep a register of lasting power of attorney (LPA) agreements. These are legal documents which allow someone (the donor) to appoint someone they trust (the Attorney) to make decisions on their behalf. To make an LPA the donor must be 18 or over and have mental capacity. They must also have made the LPA voluntarily.

23. The OPG does not have the authority to end an LPA agreement once it has been entered into and registered. However, it does have a responsibility to consider any concerns raised about the validity of an LPA (such as a concern that the donor did not have capacity to knowingly enter into the agreement). If, following investigation, the OPG decides the concerns may be well-founded, it will bring the matter to the attention of the Court of Protection (a specialist court that makes decisions for people who lack the mental capacity to make certain decisions for themselves). It will be for the Court, not the OPG, to decide whether the LPA should be allowed to continue in place.

24. We should add that, when coming to decision, the Court will usually be expected to consider all relevant evidence and information put before it. This includes both evidence presented by the OPG (including a Special Visitor’s report) and evidence presented by or on behalf of the donor and/or the attorney. In most cases, the evidence itself is subject to challenge through the court process. It will be for the Court to decide what weight, if any, to place on the evidence before it (and any challenge to that evidence). It is not our role to interfere with that process.

The OPG’s decision to continue its investigation after the dispute resolution hearing in August 2023

25. As we have explained elsewhere, the OPG had a responsibility to investigate the concerns raised about Mr X’s mother’s capacity. The evidence shows it did this. It made enquiries with a relevant person (Mr X’s mother’s GP) and, when this did not prove fruitful, it arranged for a Special Visitor to carry out an independent assessment. Under our Principles of Good Administration – getting it right – we expect organisations to act according to their duties and responsibilities. We are satisfied that, in taking the steps outlined, the OPG acted in line with our expectations.

26. We can understand Mr X’s surprise that the OPG continued its investigation after August 2023 when, as far as he was concerned, the Court had made a decision. However, as the OPG explained, it had its own concern that the Court may have come to that decision without having been aware of the full facts (namely the Special Visitor’s conclusion that Mr X’s mother had likely lacked capacity to agree to the LPA). Given the OPG’s overall responsibility (to help safeguard donors) it had a duty to bring those concerns to the Court’s attention. As we have explained, it would have been for the Court to decide what weight, if any, to place on the OPG’s information.

27. We also recognise Mr X’s concern that the OPG continued its work despite the original allegations having been withdrawn. However, The OPG’s safeguarding responsibilities do not automatically end when concerns are later retracted. As we have explained, where there is reason to question a donor’s capacity, or the validity of an LPA, the OPG must consider the available evidence and any ongoing risks to the donor. The evidence shows that is what happened in this case.

28. Mr X has expressed concern that, when conducting its investigation, the OPG did not include relevant evidence from individuals who had contact with the donor at the time of the LPA's execution. We should explain that, for the reasons set out earlier, if the OPG had not withdrawn its objection to the LPA, the appropriate place to raise these concerns would have been in Court. For this reason, we are limited in what we can say about this.

29. Having said this, we are pleased that the OPG provided Mr X with clarification on this issue. The evidence we have seen shows that it explained that the Special Visitor, when compiling their report, had relied on several sources of information relevant to Mr X’s mother’s capacity. It also listed, in detail, what this information had been. It further explained why it had enlisted the services of the Special Visitor in the first place (because it had received no reply from Mr X’s mother’s GP). Under our Principles of Good Administration – being open and accountable – we expect organisations to open and truthful when accounting for their actions. We are satisfied that, in providing these explanations, the OPG acted in line with our expectations.

Mr X complains that the OPG conducted a financial investigation relating to transactions on his mother’s bank account.

30. Although we recognise Mr X’s concerns, we have seen nothing to suggest the OPG carried out a financial investigation. As it explained, the aim of its investigation was simply to determine the issue of Mr X’s mother’s capacity to enter into the LPA arrangement. We have seen nothing to suggest this involved an inspection of her bank account (or other financial details).

31. We also seen nothing to suggest that the OPG put a block on Mr X’s mother’s account. In fact, as the OPG explained to Mr X in its response to his complaint, it does not have the authority to do so. This is a matter for the bank to decide for itself.

32. Although there is evidence of communication between the bank and the OPG, this appears to have been initiated by the bank as part of its own investigation. We further note that, in response to Mr X’s complaint, the OPG contacted the bank directly to confirm it had not asked for a restriction to be placed on the account. This approach aligns with Our Principles of Good Administration – being customer focused, where we expect organisations to behave helpfully.

33. It is not clear why the bank chose to restrict access to the account, although its email to Mr X of September 2023 suggests it was conducting its own investigation. However, if Mr X believes the bank was acting inappropriately (and in contravention of the Court’s view that the restriction could be lifted) this is a matter he would need to address directly with the bank. This is not something we can help him with. If he remains unhappy with the bank’s explanation, he may be able to refer the matter to the Financial Ombudsman Service.

34. In summary, we have decided to take no further action on this complaint. This is because the OPG acted in line with its remit and our expectations, and no further steps would reasonably have been expected.

35. We recognise how distressing this process has been for Mr X. It would no doubt have been upsetting for him to learn that concerns had been raised about his ability to act in his mother’s best interests, particularly when those concerns later proved to be unfounded. It would also have been distressing to learn that the OPG’s investigation was continuing when, following the dispute resolution hearing he would likely, and understandably, have believed the matter was at an end.

36. We realise this is unlikely to be the outcome Mr X was hoping for when he approached our office. We hope our work reassures him that the OPG, despite his view to the contrary, was acting reasonably, in accordance with its responsibilities and in his mother’s best interests.

37. We thank Mr X for bringing his concerns to our attention and wish him well for the future.

1. We have carefully considered Mr X’s complaint about the OPG. We are sorry to hear how much distress the whole situation has caused Mr X.

2. Having looked carefully at the evidence, we have not identified any failings in the circumstances which led to Mr X approaching us. For that reason, although we recognise how difficult the situation has been for Mr X, we have decided to take no further action on this complaint. We will explain the reasons below in more detail.