How to stop an Attorney acting wrongfully

Absorbed pensive mature businessman Reporting suspicious behaviour by attorneys and deputies

Are you aware of an attorney acting wrongfully? If so, you’re not alone. According to the Office of the Public Guardian the numbers of attorneys being investigated rose by over 45% in the year 2017/2018.

I am regularly asked about how an attorney can be stopped from acting wrongfully. Firstly, you need to know who the attorney’s actions should be reported to. Secondly, you need to have reasonable grounds for your suspicions – just a gut feeling isn’t enough.

The Office of the Public Guardian’s powers to investigate
The Office of the Public Guardian (OPG) is the administrative arm of the Court of Protection. Many people know the OPG is responsible for registering Lasting Powers of Attorney and Enduring Powers of Attorney. Fewer people are aware that the Public Guardian has a statutory duty to investigate allegations of abuse of vulnerable adults.

The OPG can investigate allegations of an attorney acting wrongfully and can also refer concerns to other relevant agencies such as the Police or social services. When the OPG refers concerns to another relevant agency it will make sure that the agency keeps the OPG informed of any action it takes. The OPG can also make an application to the Court of Protection if action needs to be taken to remove an attorney.

Investigating financial abuse

Financial abuse is a common cause for investigation by the OPG. Financial abuse includes negligent mismanagement, opportunistic exploitation, theft, fraud, and bullying. It also covers undue influence in connection with wills, property or financial transactions. If the attorney is a professional, financial abuse could include making excessive charges or carrying out unnecessary work. Suspicions are often raised if the incapacitated person’s property or possessions are being misused or misappropriated. There could also be abuse issues surrounding claiming state benefits.

Local Authorities have primary responsibility for safeguarding vulnerable adults. The OPG’s responsibilities are more restricted and are set out in its ‘Safeguarding Vulnerable Adults Policy’. They cover any person:

• who has a Deputy appointed by the Court of Protection, or
• is the Donor of a registered Enduring Power of Attorney (EPA) or Lasting Power of Attorney (LPA) or
• is someone for whom the Court of Protection authorised a person to carry out a transaction on their behalf under s16(2) of the Mental Capacity Act 2005 (single orders).
This includes young people aged 16 or over who are defined as adults under the Mental Capacity Act 2005.

Evidence of an attorney acting wrongfully

The OPG works with other agencies to investigate allegations of abuse of all kinds, not just financial. Abuse can take many forms. It might be deliberate or arise through negligence or sheer ignorance and it can even be self-inflicted. Some types of abuse will be a criminal offense which can lead to a prosecution. Often, however, evidence of the wrong-doing isn’t strong enough for criminal charges to be brought. Whenever a criminal offense is suspected the OPG will make a referral to the police.

The OPG’s Safeguarding Vulnerable Adults Policy states that it will:

• Prevent abuse from occurring and/or continuing where possible
• Identify abuse promptly
• Ensure the abuse ceases and the perpetrator is dealt with wherever possible
• Undertake to notify Local Authorities/Police and other appropriate agencies when an abuse situation is identified
It will do so by carrying out its statutory duties, and by thoroughly investigating reported concerns about the conduct of Deputies and registered Attorneys.

Fear of making false allegations of an attorney acting wrongfully
Relatives and friends who suspect an attorney or deputy may be carrying out abuse are often fearful of voicing their concerns. They hesitate in case they are mistaken or because they don’t wish to upset the vulnerable person who is being abused or other members of the family.

How we can help

We can help by undertaking discrete enquiries, searches and investigations. We can provide an impartial assessment of the evidence and advise on the options for stopping or preventing abuse.

If you have concerns about an attorney acting wrongfully speak to us in strict confidence. Call us on 0115 7722129 to speak to a legal expert.

Solicitors in Nottingham, Nottinghamshire, Solicitors in Derby, Derbyshire and throughout the UK

Photo credit: s_falkow / Foter / CC BY-NC