When someone is unable to take care of their own affairs, they will often have a deputy or attorney appointed to look after their interests on their behalf. That can cover a broad range of decisions relating to medical treatment and financial management. Deputies are appointed by the Court of Protection when an individual’s capacity has been lost, while an attorney is appointed by the individual who has lost capacity but while they were capable. Deputies and attorneys are often family members, close friends or professionals, such as solicitors.
Deputies and attorneys are required to act in accordance with the provisions of the Mental Capacity Act 2005 amongst which is the overriding requirement to always act in the individual’s best interests. But what happens if you’re suspicious that the attorney or deputy is not acting in the best interests of the individual? How do you make a complaint?
Open the lines of communication
The first thing to do is to talk directly to the deputy or attorney. Often there is a simple misunderstanding and better communication can resolve the issues without the need for conflict. Occasionally, however it will not be possible to resolve matters through collaborative action due to sour relationships or general conflict. In these cases, it is best to present your concerns to the deputy or attorney clearly in writing asking for clarity over the issues giving you concern. If the matter does need to be taken further, your argument will benefit from being able to show reasonable requests for information being ignored. It will also help direct the Court as to the main issues in question.
There is no set rule but it’s best to give the deputy or attorney at least two chances to respond before escalating your concerns. Again, this is to show that you are acting in a reasonable manner with the best interests of the individual at heart.
Taking matters further
If no positive response is forthcoming, then you can escalate the complaint to the Office of the Public Guardian. This government body regulates and supervises the activities and actions of individuals who have been designated as attorneys or deputies on behalf of those who can no longer manage their own affairs. It is often of benefit engaging with a solicitor experienced in the Court of Protection to help present the complaint to the Office of the Public Guardian. A more impartial and focussed complaint often achieves a better result.
The Office of the Public Guardian will assess your complaint and if deserved, will investigate the matter by approaching the attorney or deputy for a response, either remotely by post or email or, if they think the case warrants a more immediate response, in person.
If the investigation finds merit in your complaint they may refer the matter to a judge in the Court of Protection to make a judgement. This could result in the deputy or attorney being removed from their position and a replacement deputy being appointed. If the Court believes the appointment of a lay deputy would be untenable due to the potential for further conflict then they may refer the matter to the court’s panel of professional deputies or to a local professional deputy to take over. The replacement deputy would then be responsible for taking restorative action to attempt to right and wrongs done by their predecessor.
While all of this sounds reassuring, the hard truth is that going through the Office of the Public Guardian is a slow, laborious process that can potentially many months if not years in some instances. There’s also no guarantee the OPG will act upon on the complaint and refer the matter to the Court for judgement.
Speeding the process up
A potentially faster route is for you to apply to the Court of Protection directly seeking to have the deputy or attorney removed or replaced. While this may be a quicker way to resolve the situation, it also means that you will need to take legal advice to make sure you are acting in the best interests of the individual, and not responding for any other personal motivation. This is important as if the Court finds your application mendacious and self-serving they have the power to award a costs order against you, meaning that you will be responsible for paying the entire costs of the application and subsequent hearings.
From a tactical perspective it is often sensible at first opportunity to suggest to the Court that you would be supportive of a professional deputy appointment, recognising that familial conflict would not be in the individual’s best interests.
If you are the individual who has prepared the Lasting Power of Attorney and you remain capable, then you retain the power to revoke the Lasting Power of Attorney in favour of a new document with different attorneys or alternatively seeking to remove certain attorneys whilst keeping others in place if the attorneys were initially appointed on a joint and independent basis. Given the finality of this type of action, you would be advised to take legal advice.
If you’ve tried approaching the attorney or deputy and have not got the response you wanted, the next thing to do is to talk to a legal expert specialising in Court of Protection law. They will be able to walk you through the best way of dealing with the situation and take into account the wellbeing of the individual throughout and crucially keeping you safe from adverse costs orders.
Power of Attorney and Deputy appointments can become complex and messy very quickly if not handled properly. They can also be highly emotive, especially if family members or friends are appointed to the positions. They may feel personally insulted that you’re questioning their ability to care for an individual’s needs, so it needs a delicate touch to avoid escalating a sensitive situation. A professional and experienced legal representative will be able to act as a mediator between the parties and hopefully help you all find a positive and successful outcome.
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