Failure to investigate the PFA attorneys
15. Before we decide if we should conduct 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 found any indications that something has gone wrong.
16. Mr D says OPG failed to investigate the conduct of his friend’s PFA attorneys between September 2024 and March 2025. He says OPG dismissed his concerns without considering the evidence he had supplied.
17. As a result, Mr D says he was frustrated by the lack of investigation. He says it extended the period in which Mrs E was sustaining financial losses due to lack of action from her PFA attorneys.
18. In this case, we reviewed the documents provided to us by OPG and Mr D. This included the complaint file and a copy of the PFA LPA form. OPG advised there are no local policies relevant to Mr D’s complaint. It advised its remit is to assess whether attorneys have breached their duties under the Mental Capacity Act 2005 and associated Code of Practice.
19. In the absence of a local policy, we consider gov.uk and OPG’s websites, as well as the Mental Capacity Act 2005 (MCA), to be most relevant. The MCA governs lasting and enduring powers of attorney.
20. On its ‘Property and financial affairs attorneys’ webpage, the gov.uk website says attorneys can start making decisions while the donor still has mental capacity if both:
• the lasting power of attorney (LPA) says they can • the donor gives them permission.
21. Otherwise, attorneys can only start making decisions when the donor does not have mental capacity. This is outlined in section five of the PFA LPA form, which says ‘you can allow your attorneys to make decisions:
• as soon as the LPA has been registered by the Office of the Public Guardian • only when you don’t have mental capacity.
22. While you have mental capacity, you will be in control of all decisions affecting you. If you choose the first option, your attorneys can only make decisions on your behalf if you allow them to. They are responsible to you for any decisions you let them make. Your attorneys must always act in your best interests.’
23. Further, OPG’s website says PFA attorneys can step in and help donors with decision making before they lost mental capacity. For this to happen, donors need to select this as an option when they make the LPA. When attorneys act on the donor’s behalf, they’re bound by the principles of the MCA.
24. Under ‘The principles’, the MCA says ‘a person must be assumed to have capacity unless it is established that he lacks capacity.’
25. When he raised his complaint on 5 September 2024, Mr D documented the PFA attorneys were not engaging with him. He stated this was leading to financial losses for Mrs E. Mr D stated the attorneys were requesting information already provided by him regarding his friend’s finances. OPG logged his concerns on 18 September.
26. On 8 October, Mr D chased OPG for a response. He reported further concerns regarding the attorneys. Specifically, he stated Mrs E’s previous place of residence was unaware of any notice on the tenancy. He stated this meant she had been paying for her rent and bills despite not living there.
27. Mr D chased OPG again on 30 October. He advised he and Mrs E had received two letters from the PFA attorneys dated 27 August and 18 October. The letters advised the PFA attorneys needed either instructions from Mrs E directly or a medical report/evidence confirming she now lacked capacity. We consider this request to be in line with the gov.uk and OPG’s website, as well as the MCA.
28. On 20 November, OPG contacted the PFA attorneys. We understand OPG’s remit in this case was to consider whether the PFA attorneys were acting in line with the MCA and associated Code of Practice. The telephone notes document the attorneys were in the process of registering the LPAs with banks. They noted they had recently found out the donor lacked mental capacity.
29. On 22 November, OPG contacted Mr D. The telephone notes document Mr D’s felt the finance attorneys had lost Mrs E’s financial details, failed to respond to his emails, and were incompetent. The notes document Mr D did not believe the letter dated 27 August had been sent to him at the time. OPG asked whether Mr D had any evidence of this.
30. Mr D stated he felt the delay in emails and that the LPA had been registered since 2019 was evidence enough. OPG explained the PFA attorneys were waiting for confirmation Mrs E lacked capacity before they could act, which was correct. As per the MCA, the PFA attorneys must assume Mrs E has capacity unless it has been established otherwise. OPG declined to investigate the concerns further. Mr D advised he would raise a complaint, which he did in writing the same day.
31. On 27 February, OPG wrote to Mrs E’s financial attorneys. It explained it had not found any evidence to uphold the concerns raised and would be closing the investigation. It explained the attorneys should continue to act in Mrs E’s best interests and ensure decisions made are in line with the law. It provided a further overview of the role of PFA attorneys.
32. On 28 February, OPG provided Mr D with a formal complaint response and the outcome of his safeguarding enquiry. OPG explained the investigator contacted Mr D on 22 November 2024 to explain the attorneys had acted in line with the requirements of an LPA.
33. The OPG further explained a PFA LPA only allows an attorney to act whilst a donor still has capacity with their consent. It was therefore reasonable for Mrs E’s financial attorneys to wait for either her consent and instructions, or evidence she lacked capacity, before they began to act for her. Once the attorneys received this evidence, they took action to start acting on her behalf. It declined to comment on any allegations relating to whether the letters dated August and October 2024 had been sent at the time.
34. We consider this explanation to be in line with the gov.uk and OPG’s websites, which both outline exactly when a PFA attorney can begin acting for the donor. We also consider the explanation to be in line with the MCA, which attorneys must act in line with.
35. In its safeguarding enquiry outcome, the OPG explained it considered the requirements of the MCA and the Code of Practice. It found no evidence to suggest the PFA attorneys breached the law and no evidence to suggest they were not acting in Mrs E’s best interests.
36. Mr D escalated his complaint on the same day. OPG provided its final response on 13 March. It explained it was satisfied the correct conclusion had been reached and it would not be investigating further.
37. We consider the OPG’s explanations around Mrs E’s capacity and consent to be in line with the relevant government websites and legislation on this matter.
38. Whilst we sympathise with Mr D and understand it was frustrating not to receive any responses to his emails, the evidence indicates OPG contacted the PFA attorneys. It received an explanation satisfying they were acting in line with the MCA. We consider this action to be in line with OPG’s remit. We therefore do not consider it should have done anything more in this instance.
39. Overall, we cannot see any indications OPG did anything wrong by declining to look at Mr D’s safeguarding concerns further.
Complaint handling
40. Mr D says the OPG took months to tell him it would not investigate. We understand this was frustrating for him at the time, and he spent time chasing up the complaint. Mr D says he only received a response following contact with the Ombudsman.
41. Before we decide if we should conduct a detailed investigation of a complaint, we look at whether there are signs the events complained about had a negative effect which the organisation has not put right. Having done so we have found the OPG has already done enough to put right the impact of these events.
42. We consider OPG’s complaints policy to be most relevant to this part of the complaint. The policy says OPG aims to respond within 10 working days. At the time of complaining, the OPG’s complaints policy advised it was currently taking longer to reply due to high volumes of correspondence. OPG defines a complaint as ‘an expression of dissatisfaction that requires action and/or a response.’
43. Under ‘How to complain’, OPG says this can be done via call, email, or in writing, and lists the relevant contact details for each. It says if a person is not happy with what OPG tells them, they can write to OPG’s chief executive. A member of the senior leadership team will then look at how the complaint was handled and the outcome.
44. Under ‘Resolving the matter’, OPG says if it has made a mistake, it will apologise, explain what happened, and put things right as quickly as it can. It says it will ensure it learns lessons from customer feedback and make improvements where necessary.
45. In this case, Mr D raised a formal complaint on 22 November 2024. The complaint file indicates this was received on 25 November.
46. On 6 December, the complaints team forwarded Mr D’s complaint to the safeguarding unit and documented it required a ‘Tier 1+ response’. As per OPG’s complaints policy, a response should have been provided no later than 20 December.
47. On 3 January 2025, Mr D chased OPG for a response. OPG’s complaints team contacted the safeguarding team and requested a response be provided as soon as possible.
48. On 18 February, the Ombudsman contacted OPG to request it provide a complaint response. Mr D had yet to receive a response to his complaint.
49. On 28 February, OPG provided Mr D with a formal complaint response. This is 47 working days beyond its target date of 10 working days. We consider this to be a failing.
50. In its complaint response, OPG apologised for not providing a response to Mr D’s concerns. It explained the complaints had been mishandled internally and not sent to the correct department until 28 February. It acknowledged this was not the level of customer service it aimed to provide and explained it had fed this back to ensure it did not happen in the future.
51. In its letter to us dated 21 November 2025, OPG acknowledged there were delays in Mr D’s concerns reaching the appropriate team. It explained the first complaint was sent to the wrong team, who then failed to send it across to the correct one. OPG told us this had been picked up internally. It has issued reminders to ensure correspondence is reviewed and redirected promptly.
52. OPG enclosed an email thread evidencing this, which showed the following actions took place on 28 February 2025:
• a T2 complaints officer contacted OPG’s compliance team and safeguarding unit for clarification on the complaint. They noted they could not see evidence of a formal response and the telephone conversation of 22 November 2024 pre-dated the complaint letter. They advised Mr D’s concerns needed a written response.
• the compliance team acknowledged Mr D’s concerns had been incorrectly passed to the safeguarding unit, which then in turn had failed to redirect it back to investigations. The team requested further information about what happened to the complaint. The team noted the investigator held off on closing the safeguarding case and sending letters in light of the fact they thought a complaint would be coming in, which may have changed the investigation outcome. The team acknowledged the letters would have been sent in December 2024 had it known about the complaint.
• a senior team leader checked the complaint investigations folders and inbox. They explained when the complaint arrived on 6 December, it was sent to the investigator directly by the line manager of the admin team. They noted Mr D’s email of 3 January 2025 appeared not to have been responded to.
53. In this case, OPG failed to respond to Mr D’s complaint in line with its own complaints policy. We can see it has acknowledged and apologised for this and has offered Mr D an explanation as to why there was a delay. OPG has also implemented service improvements by reminding staff to review and redirect correspondence promptly. We consider these actions to be in line with OPG’s complaints policy.
54. Mr D told us he is seeking service improvements as an outcome to his complaint. As OPG has already offered this, we consider it has taken the appropriate actions regarding this issue. We therefore do not consider there are any indications OPG needs to do more to remedy this part of the complaint.