If you are an attorney or deputy you are likely to be acutely aware of the importance of your role for the person you support. There are subtle differences between the role of an attorney (appointed under an Enduring or Lasting Power of Attorney) and a deputy (appointed by the Court). A deputy has additional compliance duties as they must report each year to the Court with financial accounts. As an attorney is not obliged to report their financial dealings to anyone, the question is; how does the Court find out about financial abuse and protect the vulnerable?
The Mental Capacity Act 2005 provides that there must be an officer (known as the Public Guardian) who must, amongst many other duties, supervise deputies, investigate complaints and maintain a register of all Lasting Powers of Attorney.
It is worth noting (and to be reassured) the statistics available to us from the Office of the Public Guardian show that most attorneys and deputies exercise their powers in the correct way and the risk of financial abuse once you have lost capacity are low. However for those where safeguarding measures have been put in place, the Court say that the abusers are almost exclusively close family members.
15,000 applications were made to register Enduring Powers of Attorney
395,000 applications were made to register Lasting Powers of Attorney
14,130 deputies were appointed by the Court
The Office of the Public Guardian received 1,970 safeguarding referrals.
So who makes the referrals? They come from a number of sources including relatives, local authorities, care homes and even financial institutions.
If financial abuse is established it is a serious financial crime and the Court can cancel the use of an Enduring or Lasting Power of Attorney.
The Court can also cancel the appointment of a deputy if they are satisfied that person is unsuitable or have not acted in the best interests of the protected party. The Court will find a suitable replacement and may choose to appoint a professional deputy who is completely independent from the vulnerable party. Acting deputies must also ensure an insurance policy is put in place and paid for (before the Court will appoint them) to recover funds if they are found to have been lost due to the deputies’ actions.
For an acting deputy, annual supervision of the Court is likely to act as a deterrent and, as can be seen from the powers the Court have, action can be taken to protect the vulnerable. If you do suspect suspicious behaviour by an attorney or deputy you can report this by either speaking with a professional first or contacting the Court of Protection directly.
If you are considering making a power of attorney then we would recommend discussing your choice of attorney with a professional, as there are many options available that you may not have considered.
If you wish to discuss any of these issues raised with a solicitor at Berwins please contact us at email@example.com or call us on 01423 543102.
Further information and statistics can be also found in the Office of the Public Guardian Annual Report & Accounts 2014 -2015