Office of the Public Guardian Explained: What, How and for Who

The Office of the Public Guardian (OPG) is a vital public institution that plays a critical role in ensuring the well-being of some of the most vulnerable members of society. It’s a government agency responsible for protecting the rights and interests of individuals who’re unable to make important decisions for themselves. This is most often due to old age, mental or physical incapacity, or other factors.

The OPG is a critical part of the social safety net, providing essential services to those who cannot advocate for themselves. It’s responsible for supervising Guardians, Deputies and legal representatives who act on behalf of such individuals, making decisions about their healthcare, finances, and other important matters.

Without its services, many individuals would be at risk of abuse, neglect, and exploitation.

In the following sections of this article, we will explore the Office of the Public Guardian in greater detail, examining what it sets out to do, and how it operates.

What is the Office of the Public Guardian?

The OPG is a government agency responsible for protecting the rights and interests of individuals who lack mental capacity to make important decisions for themselves.

The agency was established in 2007 in England and Wales as part of the Mental Capacity Act (MCA), and in 2001 in Scotland following the passing of the Adults with Incapacity (Scotland) Act. These Acts set out the legal framework for the protection of people who may lack mental capacity due to age, disability, or illness.

The mission of the OPG is to ensure those who lack mental capacity, are protected from harm and exploitation, and their interests are safeguarded. To achieve this, it has a range of statutory functions and responsibilities, including:

• Supervisory oversight - such as reviewing the Guardian or Deputy decisions, providing guidance and support, and taking action if necessary to protect the person's interests.
• Investigating concerns and complaints about Guardians and Deputies - and taking action if necessary to protect the person's interests. This includes removing the individual from their role if they are found to be acting improperly or neglecting their duties.
• Providing information and guidance to the public about the Acts, mental capacity, and related issues - This includes information about how to make decisions on behalf of someone who lacks capacity, how to apply to become a Guardian or Deputy, and how to raise concerns or complaints.

The OPG in England and Wales is an executive agency of the Ministry of Justice, with offices in Birmingham and London. It’s led by the Public Guardian, who is appointed by the Lord Chancellor and is responsible for the overall management and direction of the agency. The OPG in Scotland is part of the Scottish Courts and Tribunals Service, based in Edinburgh.

The OPG works closely with other agencies and organisations to protect the rights and interests of those who lack capacity. This includes local authorities, health and social care providers, charities, and advocacy groups.

In England and Wales, the agency also works with the Court of Protection, which is responsible for making decisions about the welfare and finances of people who lack capacity. Its work is essential to ensuring that those who lack capacity are treated with dignity and respect, and their interests are safeguarded.

How are Deputies and Guardians appointed?

Deputies and Guardians are appointed by the Courts. They are authorised to act for, and make decisions on behalf of an adult who is incapable of doing so for themselves. Any individual can apply to be a Deputy or Guardian but it is recommended to seek legal advice to be sure it would benefit the adult in question. You may be required to provide evidence of your suitability for the role, which can include criminal record checks and references from professionals such as doctors and social workers.

An application to the Court includes a list of required powers to look after the adult’s affairs. This can include powers to manage their property, financial affairs, personal welfare and other important matters.

Based on the adult’s condition and circumstances, the Court will decide how long the order should last. Usually orders to are granted for a period of three years, however it may be granted for a longer period of time or for the lifetime of the adult.

Once appointed, the Deputy or Guardian is responsible for acting in the best interests of the person they represent. They must follow the principles of the relevant Acts. This includes treating the person with dignity and respect, involving them in decisions where possible, and ensuring decisions are made in their best interests.

The OPG supervises the work of Deputies and Guardians to ensure they’re acting in the best interests of the person they represent. This can include reviewing their decisions, providing guidance and support, and taking action if necessary to protect the person's interests.

How does the Office of the Public Guardian operate?

The OPG has a range of functions and responsibilities under the MCA and Adults with Incapacity (Scotland) Act. This includes the registration and supervision of Deputies and Guardians, investigating concerns and complaints, and providing information and guidance to the public. Here's a closer look at how the OPG operates:

1. Investigating concerns and complaints

The OPG has the power to investigate concerns and complaints about Deputies and Guardians. This can include concerns about their conduct, decision-making, or suitability for the role.

If the OPG receives a concern or complaint, they’ll investigate to determine whether there’s a risk of harm to the person who lacks capacity. If necessary, they’ll take action to protect the person's interests, such as removing the Deputy or Guardian from their role.

2. Providing information and guidance

The OPG provides information and guidance to the public about the relevant Acts, mental capacity, and related issues. This includes information about how to make decisions on behalf of someone who lacks capacity, how to apply to become a Deputy or Guardian, and how to raise concerns or complaints.

It also provides training and support to professionals who work with people who lack capacity. This can include health and social care professionals, legal professionals, and others.

Who does the Office of the Public Guardian serve?

There are a diverse range of individuals who lack capacity to make decisions for themselves and who need help from the OPG. This can include people with learning disabilities, dementia, mental health conditions, brain injuries, and other conditions that affect their decision-making ability.

It also serves family members, friends, and other individuals who are involved in caring for or supporting someone who lacks capacity. Additionally, the OPG serves professionals who work with people who lack capacity, such as health and social care professionals, legal professionals, and others.

Here's a closer look at some of the groups that the OPG serves:

1. Individuals who lack capacity

These people can be all ages, from young people of legal age to older adults, who have a range of conditions that affect their decision-making ability. For example, someone with dementia may struggle to make decisions about their care and treatment, while someone with a learning disability may need support to make decisions about their finances or living arrangements.

2. Family members and caregivers

Family members and other caregivers play a crucial role in supporting people who lack capacity. The OPG serves these individuals by providing information and guidance about how to make decisions on behalf of someone who lacks capacity, how to find out more about applying to to become a Deputy or Guardian, and how to raise concerns or complaints.

3. Professionals

Professionals who work with people who lack capacity, such as health and social care professionals and legal professionals, also rely on the OPG for guidance and support. The OPG provides information and training to help these professionals understand the legal and ethical frameworks that apply to decision-making on behalf of someone who lacks capacity.

The OPG also works to ensure that professionals are aware of their responsibilities under the relevant legislation. This may involve giving guidance on how to make decisions on behalf of someone who lacks capacity, how to apply to become a Deputy or Guardian, and how to raise concerns or complaints.

Overall, the OPG serves a wide range of individuals and groups who are involved in decision-making on behalf of someone who lacks capacity. Its work is essential to ensuring that vulnerable individuals are protected and supported in making decisions that are in their best interests.