What to do when Lasting Powers of Attorney go wrong, and the role of the Office of the Public Guardian, the Court of Protection and Panel Deputies 

The importance of Lasting Powers of Attorney

At Thornton & Lee, we complete independent mental capacity assessments in matters involving concerns about current attorneys or revoking an existing Lasting Powers of Attorney (LPAs) for solicitors frequently.

This blog explains what happens when LPAs go wrong, and where you can go for help. It is important to start this blog by being explicitly clear that executing LPAs, whether for health and welfare decisions or property and financial affairs, can be one of the most important legal steps you take. LPAs allow your attorneys to make decisions on your behalf if you lose mental capacity in the future.

For individuals with progressive neurological conditions, such as dementia, appointing trusted attorneys helps ensure your wishes are respected and your interests protected. LPAs can also reduce the stress, delay, and expense associated with Court of Protection applications that may otherwise be required if mental capacity is lost without a valid LPA in place.

What is the Office of the Public Guardian?

The Office of the Public Guardian (OPG) is a government body operating under the Mental Capacity Act (2005). It supports and supervises people who act on behalf of individuals who lack mental capacity.

Some of the OPG’s functions include:

• Registering Enduring Powers of Attorney (EPAs) and Lasting Powers of Attorney (LPAs)
• Supervising deputies appointed by the Court of Protection
• Investigating concerns or complaints about attorneys or deputies
• Applying to the Court of Protection where action is required to protect a person who lacks capacity

It is important to note that the OPG does not carry out frontline safeguarding in the same way as local authorities. Its role is not to mediate disputes, but to investigate concerns raised and, where necessary, escalate matters to the Court of Protection.

What is the difference between the Office of the Public Guardian and the Court of Protection?

Whilst the OPG and the Court of Protection both exist to protect and support people who lack, or may lack, mental capacity, they are two distinct public bodies in England and Wales. Although they work closely together, their roles are fundamentally different.

The Court of Protection makes judicial decisions and declarations, which can include:

• Determining whether a person lacks the mental capacity to make a specific decision
• Deciding what is in the best interests of a person who lacks capacity
• Making one-off orders, for example, authorising or refusing serious medical treatment or significant financial decisions
• Appointing deputies to make ongoing decisions on behalf of a person who lacks mental capacity, most commonly for property and financial affairs, and occasionally for health and welfare
• Resolving disputes between attorneys, challenges to existing LPAs, applications for statutory wills, and authorising deprivation of liberty

By contrast, the OPG focuses on administration, registration, and supervision. Fundamentally, the OPG acts as an oversight and supervisory body to ensure that those exercising legal powers on behalf of vulnerable people are acting lawfully.

Why do Lasting Powers of Attorney go wrong?

LPAs can go wrong for a variety of reasons, including:

• Allegations of theft, financial exploitation, or misuse of funds (financial abuse)
• Attorneys acting outside their legal authority
• Challenging family dynamics or disputes between attorneys
• Concerns that the donor’s best interests are not being upheld
• Allegations that the donor lacked the required mental capacity at the time the LPA was executed

Mental Capacity Assessments and the Office of the Public Guardian

During an OPG investigation or a Court of Protection application, mental capacity assessments are often central. An assessment may be required to determine:

• Whether the person currently has the capacity to make a specific decision
• Whether the donor had capacity at the time the LPA was executed

As independent mental capacity assessors, Thornton & Lee are frequently instructed by solicitors making applications to the Court of Protection. We specialise in mental capacity assessments completed using the Court of Protection’s COP3 form.

Further information about instructing us to complete a COP3 for the Court of Protection can be found here.

When are panel deputies used?

Following an OPG investigation and the removal of an attorney by the Court of Protection, where there is no suitable family member or professional available, the Court of Protection may appoint a panel deputy.

Panel deputies are experienced professionals approved by the Court to act in complex or high-risk cases.

Paige Gouldthorpe, Head of Foster’s Court of Protection and Vulnerable Persons Team, who are approved panel deputies in Norfolk, describes the role of a panel deputy as;

“The appointment of a panel deputy represents a legal and moral responsibility. It arises at a moment when an individual, through illness, injury, or cognitive decline, has lost the ability to manage their own affairs and no trusted family member or friend is able to step into that role. In such circumstances, the Court of Protection turns to a panel deputy as a safeguard of last resort, ensuring that vulnerability is met not with neglect, but with structured care and legal protection.

A panel deputy is more than an administrator of finances. They are a court-appointed guardian of dignity, stability, and security. Acting under the authority of the Mental Capacity Act 2005, the deputy must navigate complex financial, legal, and human considerations, always guided by a single overriding principle: the best interests of the protected party. Every decision carries weight, because behind each account, asset, or liability stands a person whose independence has been compromised, but whose rights remain intact.

The deputy’s role demands vigilance and compassion in equal measure. They are responsible for preserving assets accumulated over a lifetime, ensuring that bills are paid, care is funded, and future needs are anticipated. Yet these tasks are never merely transactional. They are acts of stewardship, intended to provide continuity, reassurance, and protection at a time of profound personal vulnerability.

Panel deputies operate under constant scrutiny by the Court of Protection and the Office of the Public Guardian. This oversight is deliberate and necessary, reflecting the seriousness of the powers entrusted to them. Where decisions carry significant emotional, ethical, or financial consequences, the deputy may return to the court for guidance.”

Where can I get help if I’m concerned about an LPA or an attorney?

• If you are concerned that an attorney may be stealing or financially exploiting a donor, or if you are a donor concerned that your attorney may be financially abusing you, it is sensible to contact the police, as theft and financial abuse are criminal offences.
• If you are a donor concerned about disputes or difficult dynamics between your attorneys, you may wish to instruct a solicitor to discuss revoking the existing LPA and executing a new one, potentially including a professional attorney to reduce conflict.
• If you have concerns that an attorney is not acting in the best interests of a donor who may have lost mental capacity, you may wish to report your concerns to the Office of the Public Guardian, who can consider whether an investigation is required.
• If you believe an attorney may be acting in an abusive or neglectful manner towards a donor with care and support needs, local authorities have a duty under section 42 of the Care Act 2014 to undertake safeguarding enquiries. In such circumstances, you may wish to report your concerns to the relevant local authority.

How can Thornton & Lee help?

At Thornton & Lee, we provide independent, timely, and legally compliant mental capacity assessments, completed robustly and in accordance with the Mental Capacity Act (2005).

Our average lead time to complete a mental capacity assessment is less than seven days, and our friendly and professional team ensures that clients and their loved ones are supported and put at ease throughout both the booking process and the assessment itself.

If you require an expert mental capacity assessment or a specialist COP3 form for a Court of Protection application, please complete our contact form and a member of our team will be in touch promptly to discuss your needs.