Office of the Public Guardian

5. Mr O and Ms O complain the OPG accepted as valid a DOR which they say their mother had been forced into signing and at a time when she lacked the capacity to sign a document.

6. They say this has caused them to experience extreme distress and anxiety. They also say their mother was left vulnerable as they are no longer able to care for her under the powers given by a Lasting Power of Attorney (LPA).

7. They would like the OPG to reinstate their LPA or support an application to the Court of Protection to overturn the DOR.

8. Mr O and Mss O had been granted LPA status for their mother (Mrs R) before. This gave them the authority to make decisions on their mother’s behalf about her financial affairs. They still have an LPA for their mother’s health and welfare needs.

9. In June 2021, Mrs R’s local authority (LA) sent the OPG a DOR signed by her. This was a formal document withdrawing Mr O and Ms O’s LPA status. Unfortunately, due to an error in the wording of the document (Mrs R had put the wrong date on it), the OPG did not accept it and returned it. But, by this time, medical professionals decided Mrs R had lost the capacity to make decisions for herself, so she could not complete a new form.

10. In July 2021, Mr O and Ms O raised concerns with the OPG about the DOR. They said their mother had been forced into signing it and it should not be accepted. They sent the OPG medical reports which suggested that at the time of signing the DOR Mrs R lacked capacity to make decisions for herself (which would have made the DOR invalid). The OPG made further enquiries, including with the LA, who disagreed with the evidence Mr O and Mrs O had presented.

11. The OPG later took advice from its legal team who advised that the DOR was not needed to end an LPA. All that was needed was evidence that the donor (the person who gave permission for an LPA, in this case Mrs R) had decided to end the arrangement and had been capable of making that decision. Based on its enquiries and the advice it had received, the OPG was satisfied that at the time of signing the DOR, Mrs R had been capable of making the decision to end the arrangement. It felt the DOR was an accurate reflection of her wishes at that time. As a result, it approved the DOR in September 2021 and cancelled the LPA.

12. Mr O and Ms O complained to the OPG about what had happened. They repeated their concerns about why Mrs R had signed the DOR and again said she had lacked the capacity to do this.

13. The OPG did not uphold their complaint. It explained that under the Mental Capacity Act 2005 (MCA) it had a legal obligation to assume that Mrs R had capacity to make her own decisions and should be allowed to do this without interference from it. It noted Mr O and Mrs O’s concerns about their mother’s lack of capacity and the evidence they had submitted to support their concerns. It explained that under the MCA judgements on capacity were time and decision specific. That meant it could not say Mrs R lacked the capacity to sign the DOR simply because she may have lacked capacity to make decisions on other matters or at other times. It said none of the evidence Mr O and Ms O had presented related specifically to the DOR decision whereas other evidence it had seen did. The OPG said it was satisfied the DOR was consistent with Mrs R’s wishes.

14. The OPG explained that if Mr O and Ms O wanted to challenge the DOR, they could do this at the Court of Protection. Or, if they believed their mother now lacked the capacity to make any decisions for herself, they could apply to the Court of Protection for permission to be appointed as deputies for her affairs.

17. The OPG helps people in England and Wales to stay in control of decisions about their health and finance and make important decisions for others who cannot decide for themselves. One of its responsibilities is to keep a register of LPAs so people can choose who they want to make decisions for them.

18. An LPA is a legal document that lets someone (the ‘donor’) appoint one or more people (known as ‘attorneys’) to help them make decisions or to make decisions on their behalf. The aim is to give the donor more control over what happens to them if they have an accident or an illness and cannot make their own decisions. The donor must be 18 or over and have the mental capacity to make their own decisions.

19. The donor may end the LPA arrangement at any time, provided they have the mental capacity to make that decision. To do this, they would usually need to send the OPG the original LPA and a written statement called a DOR. The OPG’s website provides guidance on a suggested form of words to be used in a DOR.

20. If a person lacks the mental capacity to make an LPA (or if the LPA has been revoked), someone else can apply to the Court of Protection to act on that person’s behalf. This is known as applying to become a deputy.

21. The Court of Protection is a specialist court established under the MCA. Its role is to make decisions on financial or welfare matters for people who cannot make decisions at the time they need to be made. It is responsible for (among other things): • deciding whether someone has the mental capacity to make a particular decision for themselves • appointing deputies to make ongoing decisions for people who lack mental capacity • making decisions about an LPA and considering any objections to their registration (and/or revocation).

22. Before we decide if we should do a detailed investigation of a complaint, we look at whether there are signs the organisation has got something wrong. We do this by comparing what should have happened with what did happen. We have done this and have not seen any signs that something has gone wrong.

23. As we have explained an LPA is a voluntary agreement where one person gives another the power to act on their behalf. It relies, in part, on the fact the person has the mental capacity to enter into the agreement. The LPA document is a formal recognition of that agreement.

24. Given the voluntary nature of the agreement, either party can end it. The DOR is again just formal recognition that the agreement has ended.

25. In both these situations, the OPG’s role is to satisfy itself that the donor had capacity to make these decisions (and by law it must assume they have capacity unless given convincing evidence that this may not be the case).

26. We should explain that we do not have the authority to overturn an OPG decision. We cannot say a decision was maladministrative (made with fault) simply because we, or someone else, may have made a different decision in the same circumstances. We can only look for signs of failings in the decision-making process.

27. Our Principles of Good Administration say that to get it right when making decisions organisations should take account of all relevant information and balance the evidence. In this case, we can see the OPG considered the evidence both for and against Mrs R having mental capacity when deciding to process the DOR. It also took account of legal advice. In making its decision, it acted in line with our Principles. We would not have expected it to have done more and for that reason, we cannot say there have been any signs of failings.

28. We should add that if Mr O and Ms O disagreed with the OPG’s assessment, they could have taken the matter to the Court of Protection for a formal ruling on the mother’s capacity (they could also have applied to be Mrs R’s deputy rather than her attorney). It would then have been for the Court of Protection, not the OPG, to decide whether the DOR was valid and if the LPA should be reinstated.

29. We can see the OPG explained this to Mr O and Ms O when responding to their complaint. This explanation is in line with the UK Central Government Complaint Standards that say organisations should make sure they tell people how to escalate their concerns if they are not happy with the complaint response.

30. In summary, the OPG acted in line with our expectations and we have seen no signs of failings.

31. We recognise this has been a challenging time for Mr O and Ms and it has left them feeling they have less control than they would like. We thank them for bringing their concerns to our attention.

1. We have carefully considered Mr O and Ms O’s complaint about the Office of the Public Guardian (the OPG). We have seen no sign that anything went seriously wrong.

2. We are satisfied the OPG appropriately processed a Deed of Revocation (DOR). We are also satisfied the OPG responded appropriately to the concerns Mr O and Ms O raised about this issue.

3. We recognise the events that led to the complaint have left Mr O and Ms O feeling anxious and distressed, particularly as they now seem unable to manage their mother’s financial affairs in the way they would like and may have done before. We also recognise that our decision is unlikely to be the one they were hoping for.

4. We hope the paragraphs below clearly explain our decision and give reassurance that we have considered their concerns thoroughly.