This is the first of a two-part series, looking at stopping the attorney from abusing their powers. Read the second part here which looks at how the attorney can be helped if things go wrong.
Who watches the watchmen? Who guards the guards? Who stops a attorney abusing their powers? The question of who guards the guards is a thorny problem that has bothered mankind since records began, first cropping up in the works of Roman satirist Juvenal around 1,900 years ago.
It’s a serious issue though – we’ve seen police struggle to police themselves and our law-makers break laws. People, sadly, are not always to be trusted, even those in positions of trust. This has particular relevance to those who grant or are granted Power of Attorney. Anyone with a Lasting Power of Attorney (LPA) over another person (the donor) has a huge amount of authority over that person, up to and including the power of life and death when it comes to ‘Do not resuscitate’ orders.
Stopping the POA abusing their power, in numbers
An attorney abusing their powers is clearly a problem, but is it widespread? The number of attorneys accused of abusing their powers is on the rise, as is the number of attorneys.
There were a ‘staggering’ 3,099 investigations into attorneys and court-appointed deputies in 2019/2020. With more than 6 million attorneys in the UK, those 3,099 investigations represent about 0.05 per cent of the total. It’s not exactly a crisis and furthermore, not all of these investigations will uncover wrongdoing.
People make mistakes, misinterpret rules, report attorneys out of malice or simply disagree with an attorney’s decisions.
POAs making a fraud for their own backs
When it comes to people with an LPA committing fraud, the figures are even smaller.
A written answer from Conservative MP Mike Freer, from December 12th, 2022, provides the data: since April 2021 there were 178 cases created where the Office of the Public Guardian (OPG) was alerted to attorneys being potentially fraudulently.
Of those 178 cases, only 15 resulted in an attorney being removed from the register – ten by the OPG and five by the Court of Protection. That’s not the whole picture though. The OPG does not record how many fraud cases are passed to police or the Crown Prosecution Service after the death of a donor, which might well be when suspicious activity first comes to light.
In short, fraud is not widespread. But what can you do if you suspect an attorney is acting in ways that may not be proper?
Help and safety
Firstly, if you believe someone is in immediate danger from their attorney, that their life is at risk, dial 999.
If you suspect an attorney has committed a criminal offence, contact your local police (search here for stations in England, Wales and Northern Ireland, and here for Scotland).
If you are concerned about an attorney’s behaviour – if you believe they are misusing money or assets, for example, or failing to act in the best interests of the person for whom they have responsibility – contact the Office of the Public Guardian.
The Government recommends you complete a ‘concern raising form’, including:
- The donor’s full name, address and date of birth
- The date you first became concerned
- Evidence to support your concern such as financial records
- Anything you know about the donor’s mental capacity, including copies of any mental capacity reports or names of who might have these
- Your contact details
In England and Wales, click here for a concern raising form. In Scotland, click here for more information. In Northern Ireland, contact the Office of Care and Protection.
POAs abusing their powers: More help and safety
There are other places you can contact with concerns about how an attorney is behaving. They include:
- Jobcentre Plus for concerns around benefits
- Your local adult social services for concerns over care or safeguarding
- The Care Quality Commission or the Care Inspectorate Wales if your concerns are about someone living in a care home
Remember, just because you disagree with an attorney’s decision doesn’t mean that decision is illegal. So, resist the temptation to take family feuds to the authorities – they’re not going to intervene. You could find yourself in trouble if you make ill-founded claims. But if you genuinely think someone is abusing their POA, then the above agencies all act as watchers of the watchmen.
