How Chloe Smith, a community care law solicitor in Brighton, successfully challenged an incorrect safeguarding alert and investigation against an Attorney, ensured that the donor’s mental capacity was properly assessed, and ensured that the Office of the Public Guardian handled the matter in a fair and proportionate manner.
Richard had been accused of financially abusing his mother, Judy, whilst acting as her Attorney under a registered Lasting Power of Attorney for property and finances. He explained that he was supporting his mother in making her own financial decisions as she required help due to her learning difficulty. He helped her set up direct debits for her utility bills and ensured she had easy access to her current account so that she could do her own grocery shopping and handle day-to-day decisions.
Richard’s brother, David, did not have any contact with their mother following a dispute between David and Judy a few years before. David started asking Richard for details of Judy’s bank accounts and asked to see a copy of her Will. Richard spoke to Judy about David’s demands and Judy made it clear that she did not want to share this personal information with David, who she had not appointed as an Attorney.
Richard told David that Judy had declined to share any information with him. David wrote an e-mail to Richard stating that he would ensure that he got the information he had asked for one way or another. It appeared as though David was only interested in whether his mother had changed her Will, whether he was still a beneficiary of her Estate, and how much he was likely to inherit upon her death.
A few weeks later, the Office of the Public Guardian (OPG) contacted Richard and requested full disclosure of Judy’s income, outgoings and capital over the past two years. Judy told Richard that she did not want to share this information with the OPG. Richard wrote to the OPG explaining that his mother had mental capacity and did not consent to the release of her personal information.
The OPG Officer took a heavy-handed approach and said Richard had a duty to disclose the information as part of a safeguarding investigation. Richard asked Chloe for assistance in dealing with the OPG’s demands.
The OPG has an important role as watchdog for those who have made Enduring and Lasting Powers of Attorney, as well as for those who have had a Deputy appointed by the Court of Protection. The OPG has powers to investigate the actions of Attorneys and Deputies in order to protect people from abuse, harm and exploitation.
Chloe provided Richard with information about the OPG’s Safeguarding Policy which provided typical warning signs that Officers should look for when safeguarding alerts are made. She explained the OPG’s powers to investigate and how the policy had been applied in Judy’s case. Chloe gave Richard advice on mental capacity including the starting presumption that everyone has capacity, and how to make Best Interests Decisions if a person is shown to lack the requisite capacity.
The letters sent by the OPG Officer were not completely in line with the Mental Capacity Act 2005 or its Code of Practice. There was no mention of Judy’s capacity to manage her own property and financial affairs. Chloe asked the OPG Officer to arrange an assessment of Judy’s capacity to make decisions on her financial affairs before her finances were shared with the OPG or her other son. Chloe explained how she could advise and support Richard at any Best Interests meeting and through the Court of Protection were Judy to be found lacking capacity to manage her property and affairs.
The OPG Officer agreed to send a Court Visitor to assess Judy’s capacity and discuss the concerns raised by her son David. Judy was nervous, but was found to have mental capacity by the Court Visitor. Richard gathered relevant financial information for Judy so that if she wanted to discuss anything with the Court Visitor, she could. The Court Visitor’s report confirmed that not only did Judy have mental capacity to manage her financial affairs, but she also had the capacity to make a decision regarding who she shared information with. The Court Visitor did not find any evidence of financial abuse and stated that it was clear that Richard provided a great deal of help and support to his mother to enable her to continue living as independently as possible. The OPG Officer wrote to confirm that the safeguarding investigation was closed.
There was clearly an ongoing issue with David, who appeared to be the person who raised the safeguarding alert. Chloe advised Richard as to how best to deal with any future contact with David about Judy. We often have to deal with relatives who seem to want information about elderly relatives for their own personal interests and gain rather than a genuine concern that their relative is being exploited. Chloe discussed Richard’s role as his mother’s Attorney and advised him to keep his Attorney paperwork up to date and to make concise notes of the decisions that Judy made. This was to protect both Richard and Judy from any future issues that may arise.