The Office of the Public Guardian (OPG), which is responsible for keeping a register of powers of attorney, is obliged each year to submit an annual report about the discharge of its functions. The Mental Capacity Act 2005 (MCA) also provides that the OPG can publish, in any manner the public guardian thinks appropriate, any information about the discharge of its functions.
The way that the annual report is presented can vary, depending on what OPG statistics are collected and published. This article explores why it is important to be able to gauge the OPG’s performance and how minor changes could improve its safeguarding role.
The public guardian’s functions are set out in section 58 of the MCA. They are to: establish and maintain registers of lasting powers of attorney (LPAs) and orders appointing deputies; supervise deputies appointed by the court; direct a Court of Protection visitor to visit attorneys, deputies, donors and patients of the Court of Protection; and to make a report to the public guardian on such matters as the guardian may direct. They must also, among other duties, deal with representations (including complaints) about the way in which an attorney or a deputy appointed by the court is exercising their powers.
The OPG’s annual report for 2024-25 tells us that this register now has more than nine million LPAs and enduring powers of attorney (EPAs). This is an increase of 1,300,000 from the previous year, reflecting the success of the OPG’s campaign to publicise LPAs.
It is worth considering however whether the 9m figure is strictly accurate. One problem with the register is that there is no automatic updating when a donor or attorney dies. It is up to an interested party to inform the OPG. It is therefore more than likely that the register contains records of deceased donors and attorneys.
A simple way to solve this would be to extend the ‘Tell Us Once’ service to include notification to the OPG about the death of the donor or an attorney. At the moment, this service (used when registering a death) will inform HM Revenue & Customs, the Department for Work and Pensions, Passport Office, DVLA, local council, Veterans UK, Social Security Scotland and some public sector pension providers – but not the OPG.
The register also suffers from out-of-date addresses for both donors and attorneys. It is the responsibility of donors and/or their attorneys to inform the OPG of any changes of address to any of the parties to an LPA (or a post-2016-registered EPA).
This is important, because it has been demonstrated that when making a search of the register, by using the OPG100 form, inaccurate information can cause real problems, such as in tracing vulnerable donors (for example, where an attorney has moved their donor into a care home and has not kept the donor’s family informed as to their whereabouts). In cases such as these, a concerned family member is unable to raise any concern about how the attorney is carrying out their duties; nor can the OPG investigate any concerns because they do not have an accurate record of where the donor is.
Imposing a duty on care home providers to update the OPG register whenever they have a new resident whose affairs are being managed under a registered power of attorney, would go some way towards improving the OPG’s safeguarding responsibilities.
The annual report publishes other details about the OPG’s safeguarding role but it is quite difficult to identify trends from the figures. For example, in the 2023-24 report it was noted that ‘investigations increased substantially to 3,647 from 2,849 last year’. But the 2024-25 report states: ‘The continued growth in LPA demand has been the primary contributing factor to the proportional increase in the number of investigations. This year, concerns raised with OPG increased to 11,266 from 10,577 last year, representing a 6.5% increase.’
This may simply be a poorly chosen way of describing different figures, but on first reading it looks as if there were 3,647 investigations in 2023-24 and 11,266 in 2024-25. Are they simply mixing up concerns raised with actual investigations?
In this latest report, the OPG does not disclose figures on how many OPG130s (Raise a concern forms) have been submitted compared with the previous year. These would be helpful statistics.
The register could also be enhanced if it recorded how many of those 9m powers of attorney are active. LPAs must be registered in order to be used, but many are registered and then not used for many years.
Knowing which powers of attorney are active – that is, being used by attorneys to manage a donor’s affairs – would mean that the OPG could then take active steps to supervise these in a similar way to supervision of the work of deputies appointed by the court in the absence of a power of attorney.
A simple way to identify active powers of attorney would be to impose a duty on banks and other financial institutions to inform the OPG that a power of attorney has been activated by registration with that institution. Solicitors could also assume a duty to inform the OPG whenever a power of attorney is being used for a mentally incapacitated donor when carrying out property transactions. The OPG will then have the information to carry out random spot-checks on attorneys to ensure they are carrying out their duties properly.
These simple and inexpensive changes would enhance the OPG’s safeguarding role and reassure donors that the OPG is keeping an eye on abuse by their attorneys.
Ann Stanyer is a consultant at Wedlake Bell, London
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