2. Mrs N complains the OPG failed to properly investigate allegations about her father’s (Mr O) partner’s (Ms W) management of his financial affairs.
3. She says the OPG’s actions caused her despair, anguish and upset as she felt unable to protect Mr O.
4. Mrs N would like the OPG to take responsibility for its actions.
5. Mr O was diagnosed with vascular dementia and Alzheimer’s in July 2017.
6. Mr O’s representatives applied for a Lasting Power of Attorney (LPA) in August 2017. This listed Mrs N and Ms W as his attorneys.
7. In August 2018 Mrs N reported concerns about Ms W’s management of Mr O’s financial affairs to the OPG.
8. The OPG finished its first investigation on 19 February 2019 and did not have any concerns with Ms W’s actions.
9. After Mrs N made a complaint, the OPG did a peer review of its investigation. It was completed on 22 October 2019 and led to the OPG reinvestigating the case. It found that some aspects of the original investigation needed further consideration.
10. As a result of the second investigation, the OPG applied to the Court of Protection (COP). It suspended Ms W and Mrs N as attorneys and appointed an interim deputy to manage Mr O’s finances on 27 July 2020.
11. Mr O sadly passed away in April 2021.
14. Mrs N complains Ms W was using Mr O’s finances for her own benefit and the OPG did not protect Mr O from this.
15. An LPA is a legal document by which someone (known as the donor) gives another person(s) (known as attorneys) formal permission to make decisions on their behalf. In agreeing to become an attorney, the person signs a legal declaration to say they will make decisions which are in the best interests of the donor.
16. For an LPA to be valid, the donor must have agreed to it willingly and have the mental capacity to do so. The OPG works on the basis (as set out in the Mental Capacity Act 2005) that a donor has capacity unless there is evidence to suggest otherwise. If the OPG suspects the donor lacks capacity, it may make further enquiries and, if necessary, refer the matter to the COP. It is the COP, not the OPG, that is responsible for making capacity decisions.
17. In cases where the donor nominates more than one attorney, the donor can insist that all decisions are made jointly. This means all attorneys must agree. But the donor may also give permission for the attorneys to act separately on their behalf. While this arrangement sometimes allows for quicker decision-making, it can cause problems if the attorneys do not agree. If this happens, it is not the OPG’s role to settle the disagreement. Instead, it looks at whether the attorneys are acting in line with their responsibilities. In some cases, this may include looking at whether the dispute itself seems to be against the donor’s interests.
18. If the OPG finds an attorney does not seem to be acting in the donor’s best interests, it may ask the attorney to put things right. This can include asking them to pay back money the OPG feels was not spent in the interests of the donor. In some cases, the OPG can apply to the COP to have the LPA withdrawn.
19. Our principles say that when mistakes happen, organisations should put them right. This may include reviewing any decisions which may have been wrong. Because of Mrs N’s complaint, the OPG reinvestigated how Mr O’s finances were being managed. It made recommendations based on its findings. This is what we would expect it to do in line with our principles. It is not for us to say what the outcome of its investigation should have been.
20. When the OPG reopened its investigation into Mrs N’s complaint, it questioned whether Mr O had capacity to agree to having an LPA. The OPG checked this with a special visitor for the COP (a registered medical practitioner who does mental capacity assessments).
21. The OPG found that the certificate provider was not aware of their duty and failed to discuss the LPA with Mr O. The certificate provider is an impartial person who confirms the donor understands what they are doing in making an LPA and that no one is forcing them.
22. The OPG also found that although it asked Ms W many times during its first investigation, Ms W failed to fully explain or give satisfactory evidence of the transactions she made. In its complaint response the OPG explained this was another reason why it referred the case to the COP. The OPG found the two attorneys could not work together as the relationship has broken down.
23. The OPG concluded it was unlikely that Mr O would have had capacity to agree to the LPA in August 2017. It said it was unlikely he would have had capacity to agree to three financial gifts Mrs N made on his behalf or for his funds to be used to cover expenses for Mrs N’s sister and niece.
24. The OPG made several recommendations. It recommended an application be submitted to the COP to decide the validity of the LPA and to ask whether Mrs N’s gifting from Mr O’s funds was in his best interests.
25. It also recommended for Mrs N to be asked to repay expenses relating to her sister and niece, and those for herself if she could not give needed.
26. It recommended that even if the COP found the LPA was valid, it should consider whether to overturn it based on the attorneys being unable to work together and Ms W’s failure to give a clear explanation.
27. We note that Mrs N did not agree with the OPG’s findings. But we cannot say that Mrs N was disadvantaged by the errors in OPG’s first investigation. This is because the OPG reinvestigated her concerns. And, had there not been errors in its first investigation it would likely have reached the conclusions from its second investigation sooner.
28. In summary, we can see the OPG acted on Mrs N’s concerns. This is as much as we would expect it to have done to protect Mr O’s interests. We cannot take a view on the outcome of the OPG’s investigation and we have no reason to question its decision to refer the case to the COP. We have not seen any signs that the OPG did anything wrong.
29. We recognise this was a difficult time for Mrs N and we would like to express our condolences for the death of her father. We realise our decision may be disappointing but we would like to reassure Mrs N we have given her complaint careful consideration.
1. The Parliamentary and Health Service Ombudsman has carefully considered Mrs N’s complaint about the Office of the Public Guardian (OPG). We have seen no signs the OPG did anything wrong. We appreciate our decision will be disappointing for Mrs N.