A number of the cases we deal with in the Court of Protection (“COP”) team at Kingsley Napley have an element of financial abuse against the protected party (“P”). Many of the cases received through the COP panel will be received by us at the end of long proceedings originating from a concern of financial abuse or mismanagement by an attorney or deputy. Our role can then be to investigate the claims further, consider any steps that can be taken to restore P’s estate and, in some cases, to manage P’s affairs going forward. However, not all concerns of financial abuse need or will get to this stage if handled correctly when the concern is raised.
One of the key elements of the role of attorney or deputy is to act in P’s best interests and ensure their finances are protected and managed appropriately. However, concerns can arise, leading to queries being raised by the Office of the Public Guardian (“OPG”).
Some of the cases we see sadly involve genuine malice and intent by those acting on behalf of P; though many originate from uncertainty as to how to manage the affairs of P when appointed. It is an important and challenging role and mistakes can be made.
If you find yourself having to respond to a query from the OPG, it can feel daunting. It is important to remember that the role of the OPG is to safeguard and protect those who are vulnerable, whilst supervising those in a position of power, such as an attorney or deputy. It does not necessarily mean that your role will be taken away, but they have a duty to investigate when legitimate concerns are raised.
Concerns can be raised to them by any member of the public. Once a concern is raised, the OPG will look to gather information and consider the best approach to move forward, that would be in the best interests of P.
If you find yourself having to deal with such concerns and needing to justify your actions or choices to the OPG; there are some simple steps you can take to ensure the process goes as smoothly as possible:
What to do if you receive a query from the OPG
- Stay calm and approach the concern systematically – The OPG are seeking information in the initial stages and it is not necessarily a prelude to COP proceedings; therefore, try to approach the matter calmly and methodically.
- Consider the query carefully – The OPG will have considered the concern as thoroughly as they can prior to contacting you for more information. Therefore, read through the query carefully to establish exactly where the concern has originated and what information they are looking for from you.
- Establish what information is required – They will generally be quite specific in their correspondence and the requests they make for information. Ensure you are clear with what information is being requested to ensure the process runs smoothly, if you do not understand a request contact the OPG to seek clarity.
- Collate the necessary information thoroughly – To ensure the query is dealt with quickly and efficiently, ensure you gather all the requested information and provide detailed responses to any queries. If they have asked for financial records, ensure you have provided these for the relevant date ranges and specific transactions.
- Maintain good record keeping – Part of the role or attorney or deputy is to ensure that financial records are kept and maintained so that they are readily available upon request. The OPG may request copies of documents such as:
- Bank statement
- Investment records
- Receipt or invoices for specific transactions
- Records of gifts or decisions made
- Provide detailed explanations – There may be instances where evidence cannot be provided for a specific transactions or decision. For example, if a specific transaction is queried and you cannot find, or do not have, the relevant receipt/financial record. In such instances, ensure you provide a detailed explanation as to why you do not hold this or why there may not be one.
- Give relevant background information – The OPG will have limited information as to the concern, why a decision was made or a transaction occurred. Give as much information as possible; including any background details as to circumstances, family dynamics, wishes and feelings of P. This will help build a complete picture for the OPG and help them to understand why a decision was made.
- Cooperate with the OPG fully – Do not ignore the OPG’s requests. Failing to provide information, providing insufficient information or information that is provided late, will result in the matter being escalated and potentially lead to court proceedings. If a deadline is given by the OPG, ensure it is complied with. If there is a reason it cannot be complied with, let them know.
- Comply with any direction – If an issue does arise that requires further action, the OPG and/or court may give directions on how best to deal with this. For example, if it is found that a gift was made for which authority from the court was needed, they may request that an application is made seeking retrospective authority for that gift. Ensure that such directions are complied with in a timely manner.
further information
If you are unsure about how to respond to a query or if financial abuse is suspected, seek legal advice to ensure you are taking all necessary steps to protect both yourself and the vulnerable individual you are representing. Kingsley Napley can offer advice and representation. Contact our general enquiries for further information.
about the author
Lauren joined Kingsley Napley's Court of Protection team in 2017, she deals with the management of deputyships, with a focus on clients diagnosed with dementia and those that have suffered medical negligence resulting in serious brain injuries and long term impairments. Lauren qualified as an Associate, Chartered Legal Executive via CILEx in 2020.
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