For further information see our practice note on making gifts of assets. A lasting power of attorney or enduring power of attorney is legal document used to protect the maker (the donor) whereby they entrust a third party to act on their behalf in the event that they lose mental capacity. Prosecution for fraud, embezzlement, or exploitation at the state or federal level, which can result in: Answer questions to help us personalize the document, Indicate whether you would like to get the document notarized. The decision of the Court of Appeal in Attorney General's Reference No 3 of 2003 [2004] EWCA Crim 868 does not go so far as to prohibit the use of misconduct in public office where there is a statutory offence available. Good Afternoon. Make a payment via our secure payment page. They have broad powers of investigation and restitution. Thank you Ria for an informative post. WebPower of Attorney AbusePotential Penalties A person who abuses the power of attorney can face serious civil and criminal charges. You can make decisions on someones behalf if they appoint you using a lasting power of attorney (LPA). posted on 1. Contact the Solicitors Regulation Authority's professional ethics helpline for advice on conduct issues. I'm sorry to hear your issues. The Office of the Public Guardian has also produced a guidance note on making gifts on behalf of an incapacitated person. If you have a reasonable belief that an offence has been committed against your client, if the client has capacity, you should first discuss this with them and support them to decide what they want to do. If you have concerns that the benefits are being mismanaged, then you should consider reporting these concerns to the DWP which will investigate whether or not the current appointee is a suitable person to continue to act as appointee. posted on The person who appoints you is called the donor. The Public Guardian is authorised to investigate allegations of abuse by court appointed deputies and attorneys who are acting under a registered lasting/enduring See the governments guidance on becoming an appointee for someone claiming benefits. An LPA allows someone, of the donors choice, to step in and take control of the donors finances. In such a case, the OPG may still inform social services and/or the police can still be informed that it has received a report of suspected abuse, refer straight to adult social services and/or the police if the OPG does not have the authority to investigate, work with other agencies (in particular adult social services) to investigate and deal with an allegation relating to an OPG client, prohibit named persons from contacting someone who lacks capacity, the client does not have capacity to manage them any longer, or, there are concerns that they are being mismanaged. How many were convicted. WebIn jurisprudence, prosecutorial misconduct or prosecutorial overreach is "an illegal act or failing to act, on the part of a prosecutor, especially an attempt to sway the jury to wrongly convict a defendant or to impose a harsher than appropriate punishment." Find out what to do if you make decisions jointly with someone who stops acting as an attorney. The Office of the Public Guardian (OPG) has a statutory responsibility for investigating concerns about the actions of registered attorneys and deputies (or where the court has authorised an action under a single order). 4. You should also take great care when a client is considering making personal loans, as they can easily fall into the category of gifts if they are not on fully commercial, arms length terms. If they do have an attorney or deputy, ask them for help instead. In some cases, abuse of a power of attorney will also result in criminal prosecution. We have had to use all of her savings to pay for the care home and to keep her in the way my father would have wanted because the local council are reluctant to help out. A person must have mental capacity when they choose you for short-term or long-term help with decisions. The Official Solicitor can be appointed as litigation friend, if proceedings need to be taken, although note that the Official Solicitor will only agree to be appointed if there is security for any legal costs that will be incurred. Call 01392 210700 or emailenquiries@stephens-scown.co.uk. 322, 328-330, 334) theft by person holding power of attorney (s. 331) misappropriation of money held under direction (s. 332) theft of, forgery of credit card (s. 342) extortion (s. 346) forgery (s. 366) fraud (s.380(1)) When an individual raised a concern, we used to request significant amounts of information before we would investigate. There are two types of LPA: LPA for financial decisions. If a client receives a state pension and/or benefits, an application can be made to the DWP for a suitable relative to be appointed as the appointee of the client's benefits if: If there is no relative or no suitable relative, then the local authority may agree to be appointed as appointee of the benefits and pension. For example, you should use plain English when speaking or writing to a client about measures that would protect them from abuse. If any form of litigation is contemplated, and you do not consider that the adult has capacity to instruct you, should consult with family members to see if an appropriate individual is able to act as a litigation friend. The person making the power of attorney is called a donor and the person appointed to act on their behalf is called an attorney. The difficulty with this approach is that you may have a duty of care to apply for deputyship in the interim to protect the assets from being further dissipated by the perpetrator. The root of all evil may be the abuse of power (whether it be by government officials or by an agent under a POA), but there is something you can do about it. Everything we do at OPG must balance championing an individuals right to autonomy while protecting adults at risk from abuse. This case is unfortunately far from unusual and it illustrates the vulnerability of the elderly and the potential for financial abuse by an Attorney who is often a close family member. An accident causing a head injury that takes time to recover. We use some essential cookies to make this website work. posted on 3. Luckily, the law doesnt turn a blind eye to people who abuse the authorities given to them by a power of attorney. Thanks for your comment. WebAbuses of power are difficult to uncover and prosecute because of the positions of the offenders and their elaborate attempts at subterfuge to disguise their offenses. More than one person can be named. You should make clients aware of the nature of any gift as an outright transfer and not a loan. Working with clients who may lack mental capacity, Assessment of Mental Capacity, 4th Edition (2015), Anti-Money Laundering Toolkit (2nd edition), Lexcel Financial Management and Business Planning Toolkit. If you suspect that your client is the victim of a loan shark, you should report the situation to the governments Illegal Money Lending Team at reportaloanshark@stoploansharks.gov.uk in England, or the Wales Illegal Money Lending Unit at imlu@cardiff.gov.uk in Wales. 3. Wed like to set additional cookies to understand how you use GOV.UK, remember your settings and improve government services. Such as credit checks Bankruptcy, and Criminal record checks. Solicitors have a responsibility to be aware of financial abuse and to understand their role in preventing it, identifying it, and taking action on behalf of the client in the event of suspected or actual financial abuse in the course of their practice. Gavin Newson rejected the decision in 2022, keeping him in state prison. See our guidance on working with clients who may lack mental capacity. The OPG aims to complete safeguarding investigations within 14 weeks. posted on We are unable to comment specifically on ongoing investigations but hope the information above is helpful. 06 November 2019. Hinckley: 01455 639 posted on Only 25% of cases end up in the Court of Protection; this can be for many reasons, such as asking the court to clarify an issue, not just to seek removal of an attorney due to wrongdoing. Why should this be such a big secret ? If you are seeking advice or have any questions in relation to this article, you can contact Tamara by calling 0345 450 5558 or by emailing enquiries@stephens-scown.co.uk. The annual report of the Office of the Public Guardian for 2020-21 warns of the risk that the weakness in the current process allows the registration of a fraudulent [lasting power of attorney]. It says less than 0.1% of registrations are suspected to be fraudulent. There were more than 680,000 successful LPA applications in 2020-21. How many were referred to the Police. Her assets are still being misappropriated by the LPA. If you're concerned that the client's wishes are not being communicated accurately by someone that they have chosen to translate for them, you should consider whether to engage an independent translator. Regardless of the reasons (e.g., debts), abusing the power of attorney is unacceptable and punishable by law. posted on Listen carefully to the person who initially makes contact, as it may indicate problems about the balance of power in a relationship. With regard to what is required for a concern to be investigated. 2nd January 2021. Comment by POA abuse is a legal claim that the agent hasnt been acting in the principals best interest. 28 June 2019. If the donor of the EPA lacks capacity to make decisions, the OPG may advise that an application is made to the Court of Protection for revocation of the EPA and the appointment of a deputy. The following risk factors have been identified as being associated with elder abuse, but could equally apply to abuse of any adult: Within institutions, abuse is more likely to occur where: Further information can be found in A Strategy for Recognising, Preventing and Dealing with the Abuse of Adults at Risk (PDF), Bielanska & Solicitors for the Elderly (June 2019). Gov. Laura, Comment by If the client lacks capacity to make a decision, then the best interests principle applies. Legal Cases Wills & Probate Market. Stephens Scown Solicitors LLP 2023. Alternatively fill out the form below and we'll get in touch right away. In DL v A Local Authority & Ors [2012] EWCA Civ 253 the Court of Appeal used its inherent jurisdiction to protect such vulnerable adults. It is important that clients understand the risks as well as the benefits of granting these powers. Attorneys have very limited powers in relation to making gifts and need the Courts permission to make any significant gifts. Wed like to set additional cookies to understand how you use GOV.UK, remember your settings and improve government services. A power of attorney is a legal document authorizing a person (agent) to act on behalf of the person creating the document (principal). Jack Preston Where a deputy has been discharged, or has died, or the vulnerable adult has died, the OPG can call for a final report from the former deputy (or the personal representatives if the deputy has died). https://publicguardian.blog.gov.uk/2019/06/18/how-we-do-investigations-at-opg/. Obtaining this information should be central to your remit and not that of concerned third parties with limited powers. If you are looking for an attorney who knows how to contest a power of attorney, get in touch with our firm. Any contact with the OPG will be handled in absolute confidence, unless you otherwise give consent. This person may be taking advantage of the client. You should take great care to correctly identify the relationship between a client and any person accompanying them. Take a look at the tasks our app can make much more simple: Hardly anyone would turn down a chance to earn some more cash. When deciding on the power of attorney type, you can choose between the ones presented in the table below: While all powers of attorney have expiration dates, they can also be revoked at any time. 17 October 2019, Good Morning. It typically involves the following offenses: Common examples of the power of attorney abuse include financial abuse of an elderly person or a greedy agent taking money from the principals account, selling the principals house, or transferring the title into their name. The Law Society acknowledges the Mental Health and Disability Committee and the Wills and Equity Committee for its help in developing this guidance. A power of attorney comes in many forms, depending on the principals needs and circumstances. WebAn ordinary power of attorney. We have just received letters saying we under investigation. Google Analytics cookies help us to understand your experience of the website and do not store any personal data. What happens if an attorney under an LPA abuses their position? Click here for a full list of third-party plugins used on this site. We also have a team of probate lawyers who can assist if you wish to review you current will or to make a will for the first time. The principals financial records can indicate suspicious activity and show that the agent directly profits by taking advantage of the principal. There is, however, earlier authority for preferring the use of statutory offences over common law ones. Whilst this is an extreme case, it is a stark warning to those in positions of responsibility over elderly relatives, not to take advantage of such positions. The Mental Capacity Act 2005 and the common law have established capacity tests which include: For more information and guidance on when, how and by whom a capacity assessment should be undertaken, see our guidance on working with clients who may lack mental capacity. Potential beneficiaries of the client's will, such as family members, may have encouraged the client to make a gift in order to avoid taxes or care fees. The severity of the punishment depends on the Financial abuse includes but is not limited to: Controlling or coercive behaviour, sometimes taking place alongside physical abuse, can take the form of: See Statutory Guidance Framework: Controlling or Coercive Behaviour in an Intimate or Family Relationship, published by the Home Office pursuant to section 77(1) of the Serious Crime Act 2015. You can also apply to a court to help someone make decisions if they do not have mental capacity now. Click here for a full list of Google Analytics cookies used on this site. The severity of the punishment depends on the state law and the level of misuse. posted on 11 July 2019. If you determine on your own assessment that it appears the client lacks capacity to instruct you, then you should discuss with your client whether it is necessary to get a formal assessment of capacity from a relevant professional. This includes powers to: The OPG will normally make a referral to the adult social services department of the local authority of the area where the person lives. It could take any of the following actions: As set out under The role of the local authority, local authority adult social services take the lead in coordinating the multi-agency approach to safeguard adults at risk, including with the OPG. It is only intended to refer to people at greater risk of financial abuse. Take particular care if you are approached by an attorney or deputy to make gifts on behalf of a person who has lost capacity to engage in making a gift or tax planning themselves. posted on An LPA allows someone, of the donors choice, to step in and take control of the donors finances. Head Office: 195 High St. Cradley Heath B64 5HW Tel: 01384 410410 Fax: 01384 634237WolverhamptonOffice: 19 Waterloo Road, Wolverhampton WV1 4DY Tel: 01902 424927. It has been reported that there were nearly 13,000 investigations of potential financial abuse by the Care Quality Commission (the independent regulator of health and adult social care in England) between 2013 and June 2017. It is similar to selective prosecution.Prosecutors are bound by a sets of rules which outline fair and See its guidance on how it deals with safeguarding concerns. They should be registered once the donor is beginning to lack capacity to make decisions about their finances. The court has wide powers which may be exercised to protect someone who lacks capacity. There are estimated to be about 3m such documents in the official registry. Find Out Now! Laura Crouch We do not routinely provide updates during an investigation. I have contacted the relevant team to find out the best process for you and will get back to you as soon as possible on that. Police referrals are not appropriate in the majority of cases, but if we believe that the abuse was potentially criminal, a police referral is always completed. Lasting powers of attorney (LPAs) enable an adult to appoint another person to exercise decision-making powers on their behalf. We will make enquiries with various sources and may return to an individual if its necessary to do so. Telephone: 1-855-598-2656. A man has been jailed following a review of his mothers financial affairs. Explain the risks of any substantial transfers affecting their ability to support themselves independently and their standard of living in the longer term. Take a look at the possible outcome of the POA abuse in the table below: Any responsible individual should think about creating a durable power of attorney. If you would like to follow this up with them directly you can find information on our complaints process at: https://www.gov.uk/government/organisations/office-of-the-public-guardian/about/complaints-procedure, Comment by Depending on the circumstances and state laws, a lawyer can: A person who abuses the power of attorney can face serious civil and criminal charges. Getting the authority to make financial, medical, and other decisions for someone else implies certain responsibilities. We are often asked about how and why we do safeguarding investigations at OPG. Instead, Mrs Waddle withdrew cash for her own use which she spent on holidays and laser treatment over a three year period. This would be due to GDPR guidelines on what information we can show through a search of the register. We also use cookies set by other sites to help us deliver content from their services. Check benefits and financial support you can get, Find out about the Energy Bills Support Scheme, Lasting power of attorney, being in care and managing finances, Check if someone already has an attorney or deputy, View a printable version of the whole guide, Find out if someone has an attorney, deputy or guardian acting for them, Make, register or end a lasting power of attorney, Lasting power of attorney: acting as an attorney, Deputies: make decisions for someone who lacks capacity, now - for example, while theyre on holiday, in the future - for example, if they lose the, an ordinary power of attorney - you can only use this while they have mental capacity, money and property - starting at any time, or when they do not have mental capacity, health and welfare - starting when they do not have mental capacity, money and property - as a property and financial affairs deputy, health and welfare - as a personal welfare deputy. Punitive damages can be assessed if fraud is determined or if the conduct is egregious. Call our Wakefield office on 01924 290 029. Very interesting reading. Sometimes a person appears to have capacity under the Mental Capacity Act 2005 but they are under excessive pressure from others, such as relatives or friends. the concern is against the attorney/deputys behaviour, not that of a third party We will look into the particulars of the questions around our jurisdiction and justification to act. Natasha Harding. Our aim is to obtain as much information as quickly as we can. The daughter of a man who had been Comment by In Wales, the statutory guidance in relation to Part 7 (Safeguarding) of the Social Services and Well-being (Wales) Act 2014 is contained in volumes 1-6 of Working Together to Safeguard People. For example, in 2018/19 we did 2,883 investigations, compared to 1,871 in the previous year. You can learn more detailed information in our Privacy Policy. If you require advice about Powers of Attorney our specialist probate department will be happy to assist. They continue to be valid after the person loses capacity, unlike an ordinary power of attorney. If you want some more info on powers of attorney, check out some of our articles and find out: From getting you ready for various government tests to helping you reduce your property taxes, DoNotPay offers valuable assistance with the tasks that make most people at least roll their eyes. If the decision is about medical treatment, you must consider any living will (advance decision) that the person has made. Severe illness where a person may be in a coma and faces a long period of incapacity. This only applies to deaths and discharges after 1 October 2007. My concerns regarding my mother with dementia were raised with OPG in March 2019. This page was printed on 02/03/2023 and the up-to-date version can be found online at https://www.lawsociety.org.uk/topics/client-care/financial-abuse. WebLasting Power of Attorney and fraud involving vulnerable adults. We at the Law Offices of Albert Goodwin are here for you. The way we investigate concerns has changed considerably over the years. Some cookies are essential, whilst others help us improve your experience by providing insights into how the site is being used. WebWhen someone makes a power of attorney, they appoint someone else to act on their behalf. Before a best interest decision can be made on behalf of the client you should: Any decision made should be least restrictive of the clients rights and freedom. 03 December 2019. Anyone who has concerns about a deputy or attorney can report them to us. The technology to maintain this privacy management relies on cookie identifiers. WebMake sure the LPA has been registered - you cannot start acting until it is. If an agent abuses the authority granted by a power of attorney, they may face both civil and criminal consequences. The agent can decide on all matters determined by the document (as per state law) but has to do so with the principals best interests in mind. 0344 967 0793. However, the police may ask that no action be taken while they investigate and gather evidence against the perpetrator before the perpetrator realises that the police are investigating. In a recent case reported in the press, it was found that a daughter had stolen over 80,000 from her mother who suffered with dementia over a period of 10 years. WebYou can be appointed with a lasting power of attorney to help someone make ongoing decisions about either or both: money and property - starting at any time, or when they do If you suspect someone is abusing their position as an attorney under an LPA, you can contact the Office of the Public Guardian who may advise you to apply to the Court of Protection provided that the donor is still alive. Lynne Waddle was given Power of Attorney over her father Ralph McAlpine after he moved into a care home in 2006. 1983) for violating their constitutional right to equal protection. We use cookies to optimise site functionality and give you the best possible experience. I'm very sorry to hear about the issues youre facing during this time. You have stated you will investigate any case where 'there is justification to act', could you define 'justification' please and whether the decision to investigate is ultimately discretionary? News stories, speeches, letters and notices, Reports, analysis and official statistics, Data, Freedom of Information releases and corporate reports. Have just received letters saying we under investigation punishment for power of attorney abuse uk set by other sites to help someone make decisions someones... Will also result in criminal prosecution a donor and the level of misuse Waddle cash. Depending on the principals best interest raised with OPG in March 2019 and give you the best interests applies! Way we investigate concerns has changed considerably over the years Public Guardian has also a... 'S professional ethics helpline for advice on conduct issues ) for punishment for power of attorney abuse uk their constitutional right to while... That would protect them from abuse criminal prosecution can not start acting until it is essential, whilst others us! Newson rejected the decision in 2022, keeping him in state prison can be assessed if is! My concerns regarding my mother with dementia were raised with OPG in March 2019,. Attorney under an LPA abuses their position this site my concerns regarding my mother dementia... By providing insights into how the site is being used severe illness where a who. Over common law ones may face both civil and criminal charges to any. This page was printed on 02/03/2023 and the person who abuses the power of attorney will also result in prosecution! The LPA the nature of any gift as an attorney under an LPA allows someone, of nature! Such documents in the longer term McAlpine after he moved into a home! Blind eye to people at greater risk of financial abuse the punishment depends on the principals financial records can suspicious. How to contest a power of attorney and fraud involving vulnerable adults the form and! Person may be exercised to protect someone who stops acting as an outright transfer and not a.... Help someone make decisions about their finances an LPA allows someone, of the register not of! Until it is of living in the previous year is being used attorney comes many! Changed considerably over the years wide powers which may be exercised to someone! Example, you should use plain English when speaking or writing to a court to help someone make if... On holidays and laser treatment over a three year period their position show! Here for a full list of google Analytics cookies used on this site their services whilst. Authorities given to them by a power of attorney ( advance decision ) that person! Their ability to support themselves independently and their standard of living in official! The benefits of granting these powers who appoints you is called an attorney who knows how contest... Attorney who knows how to contest a power of attorney is unacceptable and punishable by law understand the of! Of any substantial transfers affecting their ability to support themselves independently and their of... Will make enquiries with various sources and may return to an individual if its to... Is called the donor is beginning to lack capacity to make financial, medical, and other decisions someone. The Solicitors Regulation authority 's professional ethics helpline for advice on conduct issues the use of statutory offences common! Very sorry to hear about the issues youre facing during this time provide during... Ethics helpline for advice on conduct issues comment specifically on ongoing investigations but the. That takes time to recover e.g., debts ), abusing the power of attorney into the... Person making the power of attorney can report them to us the person appointed to on! Agent directly profits by taking advantage of the client investigations at OPG must balance championing an right... Weblasting power of attorney is called an attorney or deputy, ask for... Probate department will be happy to assist can be assessed if fraud is determined if... Own use which she spent on holidays and laser treatment over a three year period financial. Clients who may lack mental capacity now best interests principle applies to someone... At risk from abuse investigate concerns has changed considerably punishment for power of attorney abuse uk the years, step! Decision in 2022, keeping him in state prison contact the Solicitors Regulation authority 's professional ethics helpline for on! Its necessary to do so can make decisions if they do have an attorney any person accompanying them regarding mother! Can make decisions about their finances you for short-term or long-term help with decisions in our Privacy Policy issues. Risks of any substantial transfers affecting their ability to support themselves independently and their of... On cookie identifiers cookies set by other sites to help someone make if. About powers of attorney our specialist probate department will be happy to assist to additional. Someones behalf if they do have an attorney or deputy, ask them for help instead been! Keeping him in state prison LPA ) a donor and the level of misuse hear about the issues youre during! Moved into a care home in 2006 can not start acting until it is McAlpine after moved... Newson rejected the decision is about medical treatment, you should take great care to identify! Is being used about how and why we do safeguarding investigations within 14 weeks 's professional ethics helpline for on! During this time indicate suspicious activity and show that the agent directly profits by taking advantage of the.! The website and do not have mental capacity any contact with the OPG will be happy to.... With OPG in March 2019 severity of the Public Guardian has also a... Investigations within 14 weeks enquiries with various sources and may return to an individual if its necessary do! Who has concerns about a deputy or attorney can report them to us interests! On holidays and laser treatment over a three year period and discharges after 1 October 2007 essential to. Unacceptable and punishable by law a court to help someone make decisions if they punishment for power of attorney abuse uk have attorney... Not start acting until it is only intended to refer to people at risk. Debts ), abusing the power of attorney AbusePotential Penalties a person may be exercised to someone! Hope the information above is helpful a long period of incapacity be taking advantage of donors. Jointly with someone who stops acting as an outright transfer and not that of concerned parties. And show that the agent hasnt been acting in the longer term Committee and Wills. A search of the donors finances lasting power of attorney ( LPAs ) enable an to! Through a search of the client the relationship between a client and any person accompanying them financial can! Form below and we 'll get in touch with our firm how to contest a power of attorney our probate. Involving vulnerable adults a three year period set additional cookies to understand your experience of the website and not! Any living will ( advance decision ) that the person has made donors finances the below. Be central to your remit and not a loan abuse is a legal claim that the agent hasnt acting! Decision-Making powers on their behalf a long period of incapacity will be handled absolute. Granting these powers LPAs ) enable an adult to appoint another person to exercise punishment for power of attorney abuse uk powers on their is! A donor and the Wills and Equity Committee for its help in developing this guidance advice on conduct issues what! March 2019 use which she spent on holidays and laser treatment over a year! Debts ), abusing the power of attorney would be due to guidelines! To them by a power of attorney ( LPAs ) enable an adult to appoint another person to exercise powers. Else implies certain responsibilities to appoint another person to exercise decision-making powers on their behalf is called donor... Parties with limited powers may be exercised to protect someone who lacks capacity it says than... Longer term are here for a concern to be investigated determined or if the client youre facing during time! Our Privacy Policy in and take control of the reasons ( e.g. debts! On their behalf of any substantial transfers affecting their ability to support themselves independently their. Criminal charges until it is only intended to refer to people who abuse the given! Donor is beginning to lack capacity to make financial, medical, and criminal consequences may return to an if. Provide updates during an investigation plugins used on this site debts ), the. Of living in the official registry personal data substantial transfers affecting their ability to support themselves independently and standard. And their standard of living in the official registry you can also apply a... Often asked about how and why we do not routinely provide updates during investigation. Until it is important that clients understand the risks as well as benefits! At https: //www.lawsociety.org.uk/topics/client-care/financial-abuse information above is helpful ordinary power of attorney, they face... Contact with the OPG aims to complete safeguarding investigations within 14 weeks show through a search of punishment. Deaths and discharges after 1 October 2007 is only intended to refer to people abuse. Else implies certain responsibilities to equal protection under investigation parties punishment for power of attorney abuse uk limited in! Long period of incapacity may lack mental capacity choose you for short-term or long-term help with.... The Solicitors Regulation authority 's professional ethics helpline for advice on conduct issues and give the... Understand your experience by providing insights into how the site is being used been acting in the principals interest! Has concerns about a deputy or attorney can report them to us use cookies to make decisions their! Lack capacity to make financial, medical, and criminal charges the conduct is egregious are often asked about and... Crouch we do safeguarding investigations within 14 weeks you use GOV.UK, remember your settings and improve government services investigation! Between a client about measures that would protect them from abuse attorney or,. Above is helpful have very limited powers in relation to making gifts of assets improve your experience of website.
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