How to Respond to an OPG Investigation as Attorney or Deputy

Receiving a letter from the Office of the Public Guardian (OPG) informing you that you're under investigation can be deeply unsettling. You may have been acting as attorney or deputy for years, doing your best to care for a loved one — and now you're being asked to justify every decision you've made.

This guide explains what happens during an OPG investigation, how to respond to their requests, common mistakes to avoid, and what the possible outcomes are.

The Scale of OPG Investigations

You are not alone. OPG investigations have increased significantly in recent years as more people register Lasting Powers of Attorney and the OPG responds to rising concerns about financial abuse of vulnerable adults.

The good news is that the majority of investigations result in no further action being taken. Many investigations stem from family disputes, misunderstandings, or concerns that turn out to be unfounded. However, you must still take the process seriously and respond properly.

Why Has This Investigation Started?

Anyone can raise concerns about an attorney or deputy to the OPG — completely anonymously. The OPG is legally obliged to investigate when certain criteria are met.

Common reasons for investigations include:

• Allegations of financial abuse — Using the donor's money for your own benefit
• Concerns about gifts — Making gifts that exceed legal limits or weren't in the donor's best interests
• Family disputes — Siblings or other relatives disagreeing with your decisions
• Care home or social services concerns — Professionals reporting issues they've observed
• Failure to act in best interests — Decisions that appear to prioritise your interests over the donor's
• Lack of record-keeping — Inability to account for how money has been spent

What the OPG Can and Cannot Do

The OPG has significant powers to investigate, but also important limitations.

The OPG Can:

• Request detailed financial records, bank statements, and receipts
• Send a Court of Protection Visitor to meet with the donor
• Contact the donor's GP, care home, and social services for information
• Contact banks and financial institutions
• Ask you to complete detailed forms explaining your actions
• Apply to the Court of Protection to suspend or remove you
• Refer matters to the police for criminal investigation

The OPG Cannot:

• Remove you as attorney or deputy directly — only the Court of Protection can do this
• Prosecute you — they can only refer matters to police
• Force you to repay money — only the court can order this
• Investigate concerns that fall outside their jurisdiction (see below)

What Falls Outside OPG Jurisdiction?

The OPG cannot investigate:

• Actions that occurred before the LPA or EPA was registered
• Concerns about third parties (not the attorney/deputy)
• Concerns where the LPA has been revoked or the donor has died
• Disputes about an unregistered Enduring Power of Attorney

The Investigation Process

Understanding the process can help you respond appropriately.

Stage 1: Initial Assessment (2-5 Working Days)

When a concern is raised, the OPG conducts a quick risk assessment. They decide whether to investigate, refer to another agency, or take no further action.

Stage 2: Information Gathering

If they decide to investigate, the OPG will:

• Send you a formal letter explaining the concerns
• Include an OPG5 form (Information Provision Form) — often 15-27 pages
• Request bank statements, receipts, and other financial records
• Give you a deadline to respond (usually 2-3 weeks from the date on the letter)

At the same time, they may contact:

• The donor's GP for medical records
• Social services for care records
• Care homes or care agencies
• Banks and building societies

Stage 3: Court of Protection Visitor

In many cases, the OPG will arrange for a Visitor to meet with the donor. This may happen without your knowledge. The Visitor will assess the donor's capacity and ask about the concerns raised.

Stage 4: Review and Decision

Once all information is gathered, the OPG investigator prepares a report with recommendations. This is reviewed and signed by the Public Guardian (or a delegate).

How to Respond to the OPG5 Form

The OPG5 form is your main opportunity to explain your actions and defend your position. How you complete it matters enormously.

Step 1: Read Everything Carefully

Before you do anything else:

• Read the letter and form completely
• Note the deadline
• Identify exactly what concerns have been raised
• List what information and documents are being requested

Step 2: Request More Time If Needed

The deadline given is often unrealistic, especially if you need to gather records from several years. Contact the investigator by email immediately if you need more time.

Step 3: Gather Your Records

You may need to provide:

• Bank statements (potentially going back several years)
• Receipts for purchases and payments
• Invoices from care providers
• Property valuations
• Records of investments
• Any written records of decisions you made

Step 4: Complete the Form Thoroughly

When completing the OPG5 form:

• Answer every question — Don't leave anything blank
• Be honest — The OPG can verify information with third parties
• Explain your reasoning — For each significant decision, explain why it was in the donor's best interests
• Provide context — Include relevant background about family circumstances, the donor's wishes and preferences, and your relationship
• Keep copies — Photocopy everything before sending

Common Mistakes to Avoid

Many innocent attorneys and deputies make their situation worse by how they respond. Avoid these common mistakes:

1. Not Responding or Responding Late

This is the worst thing you can do. It suggests you have something to hide and will likely lead to escalation.

2. Being Defensive or Hostile

The investigator is not your enemy. Being aggressive or uncooperative will not help your case.

3. Providing Incomplete Information

If you can't explain where money went, the OPG may assume the worst. Provide as much detail as possible.

4. Making Assumptions About What They Know

Provide full explanations even if you think something should be obvious. The investigator doesn't know your family situation.

5. Not Understanding the Gifting Rules

Many investigations relate to gifts. Under Section 12 of the Mental Capacity Act 2005, attorneys can only make:

• Small, reasonable gifts on customary occasions (birthdays, Christmas, etc.)
• Gifts to charities the donor previously supported

These gifts must be reasonable given the donor's finances. Large gifts — including loans to family members, paying family members' bills, or tax planning — require Court of Protection approval.

Possible Outcomes

After investigation, the OPG will reach one of several conclusions:

If Court Action Is Taken

If the OPG applies to the Court of Protection, they may seek:

• Suspension — Your powers are frozen while the matter is resolved
• Revocation — The LPA is cancelled entirely
• Removal — You are removed and replaced (often with a professional panel deputy)
• Restrictions — Limits on what you can do without court approval
• Repayment order — You must repay money from your own funds

In 2024-25, the OPG made 509 court applications to remove attorneys or deputies.

Criminal Prosecution

In serious cases, the OPG may refer the matter to police. Under Section 4 of the Fraud Act 2006 ('Fraud by Abuse of Position'), financial abuse as an attorney can result in a prison sentence of up to 10 years.

What If the Investigation Is Unfounded?

If you believe you have done nothing wrong, the key is to demonstrate this clearly:

• Show you understand your duties — Reference the Mental Capacity Act Code of Practice
• Explain each decision — Show how it was in the donor's best interests
• Provide documentation — Receipts, records, and evidence supporting your actions
• Give context — Explain family dynamics, the donor's previous wishes, and any disputes

Frequently Asked Questions

How long does an OPG investigation take?

The OPG targets 70 working days (about 14 weeks), but the average is currently 138 working days (about 28 weeks). Complex cases can take 6 months or longer.

Can I continue acting as attorney during the investigation?

Usually yes, unless the OPG applies to the court for an emergency suspension. However, you should be extremely careful to act properly and keep detailed records of all decisions.

Should I get legal advice?

For complex cases or serious allegations, specialist legal advice is strongly recommended. Solicitors who specialise in Court of Protection work can help you respond appropriately.

What if the concern was raised maliciously?

The OPG must investigate regardless of motive. Your response should focus on demonstrating that your actions were proper, not on attacking the person who raised concerns.

Will I have to repay money?

Only if the court orders it. If you made gifts or expenditure that exceeded your authority, you may be required to repay from your own funds — even if the recipient has already spent the money.

Can I resign as attorney?

You can disclaim (formally give up) your role as attorney. However, this doesn't necessarily end an investigation into past conduct, and you may still face consequences for actions taken while you held the role.

OPG Contact Details

Related Guides

• How to Report Concerns About an Attorney or Deputy to the OPG
• How to Write a Witness Statement
• How to Make a Subject Access Request