InvestigationsPublic Guardian:investigationsPublic GuardianOffice of the Public Guardian:investigationsOffice of the Public GuardianPublic Guardian:investigationsPublic GuardianOffice of the Public Guardian:investigationsOffice of the Public GuardianPublic Guardian:investigationsPublic GuardianOffice of the Public Guardian:investigationsOffice of the Public GuardianPublic Guardian:investigationsPublic GuardianOffice of the Public Guardian:investigationsOffice of the Public GuardianPublic Guardian:investigationsPublic GuardianOffice of the Public Guardian:investigationsOffice of the Public GuardianPublic Guardian:investigationsPublic GuardianOffice of the Public Guardian:investigationsOffice of the Public Guardian
20.38The Public Guardian has the power to conduct investigations into the conduct of attorneys and deputies. The Court of Protection can order that a report be made to the Public Guardian by a deputy.
1MCA 2005 s19(9)(b).20.39Anyone who has concerns about the conduct of an attorney or deputy may raise these concerns with the OPG. Investigations will usually centre on the attorney or deputy’s management of P’s finances, and allegations of suspected financial abuse, but may encompass other aspects of the attorney or deputy’s behaviour in relation to P.
20.40Following an investigation, the OPG will produce a report which will make recommendations. In the event that the OPG concludes that it is in P’s best interests to do so an application can be made to the Court of Protection. The OPG does not require permission to make such an application.
2COPR r51(1)(b).20.41In the financial year 2015/16 the Public Guardian received a total of 2,681 safeguarding referrals. Of these, 876 were investigated with 151 resulting in an application to the Court of Protection.
3Office of the Public Guardian Annual Report and Accounts 2015–2016, available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/535456/OPG_Annual_Report_-_2015-16__web_.pdf It is the experience of the authors that the OPG has grown more robust in recent years and more willing to litigate when necessary.
20.42The case of
The Public Guardian v JM4[2014] EWCOP B4. looked at the interface between a police investigation into the conduct of an attorney and an investigation by the OPG. In his judgment, Senior Judge Lush noted that:
44. There are significant differences between a police investigation and an investigation conducted by the OPG. When the police investigate an alleged crime, they need to consider whether there is sufficient evidence to present to the Crown Prosecution Service (‘CPS’) to guarantee a realistic prospect of conviction …
45. By contrast, an investigation by the OPG is concerned primarily with establishing whether an attorney or deputy has contravened his authority under the Mental Capacity Act 2005, or has acted in breach of his fiduciary duties under the common law of agency, or has behaved in a way that is not in the best interests of the person who lacks capacity. The standard of proof, ‘on the balance of probabilities’, is lower than the criminal standard.
20.43This case is a reminder to attorneys, as well as deputies, and their advisers that the Court of Protection will still act to remove an individual who it believes has not acted in P’s best interests, despite that individual not facing prosecution for their actions.