LPA Certificate Provider concerns

Bhaje

Hi I would appreciate your views and suggestions on a situation that has arisen:-
My nephew applied for LPA as his father was not in good health brought on by heavy drinking and ended up in a care home unable to look after himself.
He prepared application for LPA and got his siblings together to discuss their father's welfare. Briefly his siblings tore up the forms and accused him of fraud and ceased communicating with him.

Nephew contacted me for help, as care home was pressing for payment for his care and they had no access to funds, so he decided to apply again for LPA.
Myself as deputy/secondary LPA and a close family friend who we have known for over forty years as the certificate provider and to whom the situation was explained clearly.

The LPA was granted to the nephew allowing him to take care of his father's finances etc...
Everything seemed fine until last week, our friend the Certificate Provider (CP) received a letter from the OPG saying that they want to investigate the circumstances that led to the creation of LPA with a long list of questions for him to answer.
Some of the questions seem to be more appropriate to my nephew than the CP! who helped him in good faith.

The father is Protected Party under Court of Protection and it was ruled that he best remains at the care home.

Has someone on this forum come across such a situation ? It is causing some anxiety for us. 

 

elsien

You say your nephew applied for LPA.

A power of attorney needs to be freely granted by the donor who wishes to have an LPA,  and who chooses what to put in it and decide who they want to act for them. From the way you have written it, although I’m sure it’s not the intention, there could be a query as to whether this was genuinely the person’s choice, as the father doesn’t seem to have had much involvement in this process at all given that it’s his power of attorney

The OPG will be investigating whether the father did indeed have capacity to make the power-of-attorney and potentially also who he chose and why given the siblings may well have said he has been coerced.

Did the certificate provider actually speak to the father in private to check that this was indeed in line with his wishes and that he understood what he was signing. And to say to him "who do you want to act for you, if anyone", because it reads as if having you was the nephew‘s choice and not his father's. And was it explained that he had the right to say no to an LPA if he wanted to. 

This may not be the case, but if he’s in the care home and unable to look after himself, it has to raise questions about his understanding.

I have come across a couple of these. in one of the LPA was revoked. In the other it was left in place due to lack of evidence. 

Keep_pedalling

It sounds like the person in care had little input to the creation of the LPA, if this was because he did not have the mental capacity to make an LPA then deputyship should have been applied for rather than an LPA.

Flugelhorn

Keep_pedalling said:

It sounds like the person in care had little input to the creation of the LPA, if this was because he did not have the mental capacity to make an LPA then deputyship should have been applied for rather than an LPA.

I suspect that  this was the case - the certificate provider's role is not complex but they do have to follow the rules and speak to the donor in private and be sure that the whole thing is what the donor wishes and that they understand what is happening. Sounds like the care home were pushing for the simpler route 

elsien

if the LPA is overturned, then someone will need to apply for deputyship. With deputyship, there is an obligation to inform others that it is being applied for and it takes a much more prolonged period of time for it to go through the processes.
As there seems to be some family friction going on here, it may also be disputed as to who is best placed to act as deputy. in their circumstances a professional paid deputyship through a solicitor may needs to be considered. 

Bhaje

Thank you all for your input.
I would like to mention, if it's material, that at the time of LPA application, my nephew, a member of council social services team and myself met with the donor and discussed this at length and explained the situation to him regarding the unco-operative behaviour of his other three children. 
The donor agreed that his eldest son and myself as deputy could apply for LPA and signed the application. This was about two years ago.
Does/ will this have any bearing on the investigation?
Whatever the outcome, my main task is to ensure that the money from the donor's share of the estate is used for his care, which I fully trust the LPA (my nephew) on doing.  

elsien

The OPG should take all evidence into account, including that of relevant professionals. 
You may also find this helpful.
How we do investigations at OPG – Office of the Public Guardian

Attorneys and Deputies - Mental Capacity Toolkit

Keep_pedalling

Bhaje said:

Thank you all for your input.
I would like to mention, if it's material, that at the time of LPA application, my nephew, a member of council social services team and myself met with the donor and discussed this at length and explained the situation to him regarding the unco-operative behaviour of his other three children. 
The donor agreed that his eldest son and myself as deputy could apply for LPA and signed the application. This was about two years ago.
Does/ will this have any bearing on the investigation?
Whatever the outcome, my main task is to ensure that the money from the donor's share of the estate is used for his care, which I fully trust the LPA (my nephew) on doing.  

That will certainly be of great importance especially if that member of the SS team is still around and can back that up. For this to be raised after 2 years if almost certainly because someone has raised a complaint with the OPG.