What is the Office of the Public Guardian (OPG)?

Established in October 2007, the Office of the Public Guardian (OPG) supports the Public Guardian to carry out the legal function of the Mental Capacity Act 2005.

There can sometimes be confusion around the distinction between the OPG and the Court of Protection, as well as how deputyship and Lasting Powers of Attorney differ from one another. In this article, Gemma Bryan, paralegal in Lodders’ Private Client team, answers some of the most frequently asked questions about the OPG.

What does the OPG do?

The OPG essentially has three main functions:

• To register lasting powers of attorney and enduring powers of attorney
• To supervise those acting as Court appointed deputies
• To investigate reports of abuse of power from attorneys or deputies and take action if necessary.

Is the OPG different to the Court of Protection?

Yes. Both organisations are involved in protecting potentially vulnerable individuals and their responsibilities can sometimes be confused. However, they have different roles and act independently of one another.

The Court of Protection will make decisions for people who lack the mental capacity to make those decisions themselves.

The Court can make one off decisions in the person’s best interests relating to their property and financial affairs or health and welfare, or can appoint a deputy to make decisions on behalf of a person who lacks capacity on a continuing basis. Read our detailed guide on the role of the Court of Protection here.

The OPG does not make decisions for individuals but has a supervisory role and handles the day to day administration of managing a person’s affairs.

What is the difference between an attorney and deputy?

The roles of attorney and deputy are similar in a number of ways, with both being responsible for managing the affairs of another person. This could be in relation to financial matters, health and welfare matters or both.

However, the key difference between an attorney and deputy is that an attorney is appointed by the individual when they still have capacity, through completing a Lasting Powers of Attorney (LPA) or an Enduring Power of Attorney (EPA). A deputy is appointed by the Courts if an individual has lost capacity and does not have an LPA or EPA in place. This means that the individual most likely does not have any say in the appointment of a deputy. This is also a much longer and more expensive process.

An LPA is a legal document that allows a person to appoint someone they know and trust to make health and financial decisions, should they lose the capacity to do so themselves. The person appointed as an attorney will usually be a family member or a close friend. However, you can choose anyone over 18, providing they are willing to undertake the role. In some cases, you may choose to appoint a professional attorney, such as a solicitor, and this is something that Lodders can assist with.

Is it difficult to set up an LPA and how is registered with the OPG?

It is possible to prepare your own LPA online without the help of a solicitor. The LPA must then be sent to the OPG for registration before it can be used. Although there are guidance notes provided by the OPG to complete and register an LPA, people often experience difficulties in understanding the different options for how and when attorneys can act and what additional information can be included in an LPA. There is also a strict order of signing the document and the process for registering an LPA with the OPG can become complicated in there are errors in the document.

When should I set up an LPA?

People often assume lack of capacity relates only to dementia and old age, but people can lose capacity at any time due to accidents or illness.

To set up an LPA, you must be 18 or over and, crucially, you must have mental capacity. It therefore makes good sense for both you and your loved ones to arrange it when you’re still young, have all your mental faculties and are capable of making decisions and signing the document.

How can I set up an LPA?

Nobody wants to think about a future in which they lose mental capacity and become incapable of making decisions for themselves. But it is reassuring to know that someone you trust can make the right decisions for you, if you no longer can.

A Lasting Power of Attorney drafted by one of Lodders’ Care & Capacity specialists will ensure someone with your best interests at heart can make these decisions. To discuss arranging an LPA sooner rather than later for you and your loved ones, please speak to a member of our team today.