Certificate providers and their role in LPAs
Prior to the introduction of Lasting Powers of Attorney (LPAs) an “enduring power of attorney” was used. These were, unfortunately, open to abuse as they were valid as soon as signed and witnessed and no precautions were in place to protect the donor This meant that unscrupulous people could cajole the vulnerable and elderly into signing them. Once signed, the attorney could empty the donor’s accounts or otherwise deal with their property and finance illegally. For those unfamiliar with these phrases, an attorney is the person chosen to make decisions on behalf of the donor and a donor is the person for whom an LPA has been set up for.
This abuse was recognised and it was decided that a new power of attorney document would be used instead. From this LPAs were born, of which there are two types; one for Property and Finance, the other for Health and Welfare. With the introduction of these documents a safety check was put in place in the form of a certificate provider.
The certificate providers role
The involvement of certificate providers in creating any form of lasting power of attorney is crucial and encompasses three main responsibilities:
- Their initial duty is to verify your identity. They should speak to you on your own to ensure that the power of attorney is not being established by someone else for their gain, particularly in situations where the choices regarding attorneys, preferences, and instructions might differ if made directly by the individual concerned. Fraud has been a growing issue in recent years in relation to LPAs, particularly in residential conveyancing. There have been cases where fraudulent LPAs have been (unknowingly) approved by the Office of the Public Guardian and have then been used to sell properties when the real owner had no knowledge of this. More on this in another article to come.
- Their next responsibility is to ascertain that you fully grasp the implications of your choices, preferences, and instructions in establishing an LPA, ensuring these decisions are made voluntarily and not under duress or without the freedom to decide otherwise.
- Lastly, they must verify that you possess the cognitive ability to make informed decisions as documented in the LPA.
This verification of mental capacity is critical since disputes over LPAs frequently arise from questions about the individual's cognitive ability to make such decisions.
Eligibility for Certificate Providers
A certificate provider must be well-acquainted with you for a minimum of two years or possess professional qualifications, ensuring they are not involved in the LPA in any other capacity.
Eligible certificate providers include:
- A personal acquaintance, such as a friend, neighbour, or (former) colleague, who has known the donor for at least two years.
- A professional with relevant expertise, like the donor’s general practitioner, a healthcare worker, or a solicitor.
Restrictions on Eligibility for Certificate Providers
Certain individuals are prohibited from serving as certificate providers:
- Any appointed attorney or replacement attorney in any LPA or enduring power of attorney made by the donor.
- Family members of the donor or the attorney(s), including spouses, civil partners, in-laws, and step-relatives.
- The donor’s or attorney’s unmarried partner, boyfriend, or girlfriend, regardless of their living situation.
- Business partners or employees of the donor or the attorney.
- Anyone involved in the management or ownership of a care home where the donor resides.
Choosing a certificate provider can often be a decision made during the LPA creation process due to the logistical challenges of coordinating the presence of witnesses and an eligible certificate provider simultaneously. It is acceptable to finalise the choice of a certificate provider when the document is being signed.
The importance of a Lasting Power of Attorney (“LPA”) has recently been stressed by Martin Lewis in his show The Martin Lewis Money Show Live where he mentions legal costs can be avoided by doing it yourself. But are DIY LPA’s worth the risk of rendering the LPA invalid? The recent case of TA v The Public Guardian [2023] EWCOP 63 highlights the responsibilities of a Certificate Provider and the risks that come with using a lay Certificate Provider.
The Mental Capacity Act (MCA) and the role of Certificate Provider
A requirement to act as Certificate Provider is set out in MCA 2005 Schedule 1, paragraph 2(1)(e). In signing as Certificate Provider, you must be satisfied the donor (1) understands the purpose of the LPA and the authority it provides (2) they have not been placed under any undue pressure to create the LPA and there has been no fraud involved in the making of the LPA and (3) there is no other reason which means the LPA should not be effective.
Essentially, the role of the Certificate Provider is to confirm that the donor has capacity to make the LPA, understands the effect of the LPA and is satisfied that no one is forcing the donor to make the LPA.
It’s certainly more than just witnessing a document and this was highlighted in the recent case of TA v The Public Guardian.
The consequences of TA v The Public Guardian
The case concerned two LPA’s made in 2021 which appointed the donor’s daughter as sole attorney, revoking the donor’s previous Property and Finance LPA made in 2019, which appointed all three of her children as attorneys. The Certificate Provider of the new LPA’s was the donor’s close friend and former mother-in-law.
The Office of the Public Guardian (“OPG”) launched an investigation into the LPA’s that were created in 2021, questioning the role of the Certificate Provider and whether they had taken suitable steps to ensure the requirements of paragraph 2(1)(e) had been satisfied. Following its investigation, the OPG issued an application to cancel the LPA’s on the basis that they were invalid. The Court concluded that in order for the certificate to be valid, the Certificate Provider needs to show evidence of a valid opinion that has been properly formed. Essentially, just showing that the certificate has been signed by the Certificate Provider is not sufficient.
Moving forward, this can have significant consequences on the validity of an LPA. If there is ever an enquiry into the certificate or its validity, the Certificate Provider will be required to set out the process they went through to satisfy themselves of the three requirements set out under paragraph 2(1)(e).
We may start to see an increase in enquiries into the validity of the certificate possibly judging the document invalid even if it is deemed the donor had capacity to sign. Just think of a neighbour or friend who the donor may have asked to act as Certificate Provider - will they have complied with their duties?
The case of TA v The Public Guardian re-enforces the importance of choosing the right certificate Provider and the significance of their role in creating a valid document.
Should you wish to discuss the contents of this article fully or LPAs more generally, please speak to our specialist Senior Associate solicitor Steven Murgatroyd on 01484 504936 or email steven.murgatroyd@ramsdens.co.uk.
The above article is for illustrative purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any part of the information given.