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Office of the Public Guardian – Mental Capacity Act

The Mental Capacity Act 2005 established the role of the Public Guardian. The Public Guardian is supported in their duties by the Office of the Public Guardian (OPG), an agency of the Ministry of Justice.

OPG helps people in England and Wales plan for their health, welfare and financial decisions to be taken care of if they lose capacity to make certain decisions for themselves. This is achieved through the registration of lasting powers of attorneys (LPAs) and enduring power of attorneys (EPAs). 

OPG also protects the interests of people who may lack capacity to make certain decisions for themselves, by:

  • supervising deputies appointed by the Court of Protection
  • investigating concerns about the actions of attorneys or deputies acting under a registered LPA, EPA or deputy court order.

Attorneys and deputies must follow the five principles of the MCA and make decisions in the best interests of the person who lacks mental capacity. If they do not, they may be investigated by the OPG.

As OPG does not have a presence in communities, it’s important that health and social care practitioners refer concerns to OPG if they’re worried about the actions of an attorney or deputy.

Example of concerns which may be investigated by OPG include:

  • donor’s mental capacity to sign or make an LPA
  • donor’s mental capacity to revoke (cancel) an LPA
  • attorney or deputy’s misuse of finances
  • attorney or deputy’s delegation of duties
  • unpaid care fees
  • gifts or loans
  • health and welfare – for example, neglect or abuse

However, investigations can only be made on specific concerns which are related to the actions of attorneys or deputies. Some investigations will involve local authorities and the police so that the donor is safeguarded by the appropriately.

Examples of concerns that OPG cannot investigate:

  • most actions which occurred before the LPA or EPA was registered (unless the concern is about the donor’s mental capacity to sign or execute an LPA or EPA)
  • concerns about someone who is an attorney or deputy, but not their actions in relation to a registered LPA or EPA
  • concerns where the LPA is no longer registered – for example, it has been revoked by the donor, the donor or attorney has died, or the attorney has disclaimed

However, if a concern falls outside of OPG’s jurisdiction, they will make sure the case is referred to the relevant local authority or police.

Working with OPG

To support and protect people who may lack mental capacity, OPG should work closely with partners in the health and social care sector. To support this, here are some steps that practitioners can take:

  1. When working with someone who may lack mental capacity, it’s important to check if they have a power of attorney or a deputy court order. If they do, please consult their attorney or deputy where appropriate. You can find out if someone has an attorney or deputy by searching OPG’s register of LPAs, EPAs, and deputy court orders by filling in an OPG100 form.
  2. When presented with an LPA, EPA or deputy court order, check it’s legally valid. How to know whether a power of attorney or deputy court order is valid.
  3. If you’re worried about the actions of an attorney or deputy, report your concerns to OPG immediately. Email, or call OPG on 0300 456 0300.