MCA and the Office of the Public Guardian role
Attorneys and Deputies
Many people presume that if you lack capacity to make a specific decision yourself, your ‘next of kin’ would have a legal right to do so on your behalf. However, this is a common misconception, and, under the MCA, there are only four potential legal categories of best interest decision makers:
- A person providing care or treatment, acting under the general defence
- An attorney appointed by the individual when they had capacity to execute a LPA
- A deputy appointed by the Court of Protection to make decisions on behalf of the person
- The Court of Protection (Ashton et al, 2018, 51)
Attorneys and deputies have a duty to abide by the five principles of the MCA and act in the best interests of the person who may lack capacity. However, some attorneys and deputies may neglect, misunderstand or abuse their duties. The MCA allows the Public Guardian to investigate ‘representations (including complaints) about the way in which a donee of an LPA or a deputy appointed by the court is exercising his powers’.
When a concern is received by OPG the following process happens:
Establish whether the Public Guardian legally has power to investigate the concern: OPG’s jurisdiction is limited and investigations can only be made on specific concerns which are related to the actions of attorneys or deputies of registered instruments and their powers under the instrument.
Concerns received by OPG are generally focused on any actions carried out by attorneys or deputies which breach the MCA. This may include:
- Donor’s capacity to sign or execute an LPA
- Donor’s capacity to revoke an LPA
- Attorney or deputy’s misuse of finances
- Attorney or deputy’s delegation of duties
- Unpaid care fees
- Gifts or loans
- Health and welfare – for example, neglect or abuse
Examples of concerns which OPG are unable to investigate:
- Most actions which occurred before the LPA or EPA was registered (unless the concern is about the donor’s mental capacity to sign or execute an LPA or EPA)
- Concerns about someone who is an attorney or deputy, but not their actions regarding a registered LPA/ EPA
Concerns where the LPA is no longer registered – for example, it has been revoked by the donor, the donor or attorney has died, or the attorney has disclaimed.
- Action plan: If the concern progresses to investigation, an action plan will be made. The investigator will also take initial steps to clarify the concerns raised, for example, calling the concern raiser for additional information, contacting the local authority, or sending a Court of Protection visitor to assess the donor’s capacity.
- Analysis and collaboration: OPG will look for evidence which determines whether or not an attorney or deputy has failed in their statutory duties or acted unlawfully. OPG may work with external agencies, such as local authorities and the police, to make sure that proportionate action is being taken by the correct agency to protect someone who may be at risk of abuse. Under the MCA, the Public Guardian has the power to access any health records and local authority reports which relate to a donor.
- Report, recommendations and closure: Once the investigator has collated the necessary evidence, the investigator will write a Public Guardian report which outlines key findings and recommendations for next steps. There are three outcomes to an investigation:
- No further action – e.g. where no evidence of mismanagement from the attorney or deputy is found.
- Further action – e.g. an attorney is instructed to apply to the court for retrospective approval of gifts
- Court action – e.g. where there is clear evidence that financial or health and welfare abuse has taken place. OPG will make an application to the Court of Protection, for example to have the LPA revoked and a deputy appointed
1 Reflecting on values and bias within mental capacity decision-making
2 The history and current context of mental capacity legislation and policy
3 The concept of mental capacity
4 Best interests
5 Supported decision making
6 Deprivation of liberty: human rights
7 MCA in clinical decisions for care and treatment
8 MCA and the Office of the Public Guardian (OPG) role