An Enduring Power of Attorney (EPA) was the precursor to a Lasting Power of Attorney ('LPA'). LPAs were introduced in 2007 as it was felt safeguards were required to stop financial abuse of those who required an attorney (‘Donors’). An EPA could be drafted, signed and witnessed and used straight away to withdraw money from a bank. Amongst several other steps, LPAs introduced a certificate provider as an extra stage of security.
A certificate provider had to be independent of the Donor and that they had capacity to understand what they were signing and also that they had not been influenced by anyone else to make the LPA. There had been instances when the certificate provider had not understood this and had simply been a witness to the donor signing. Which leads us on to the case at hand.
The case of TA v the Public Guardian [2023] highlighted the importance of selecting certificate providers who understand the responsibilities involved in being a certificate provider and are willing to actively engage with donors to ensure the validity and integrity of the LPAs. They were not just to be a witness to the document but fully involved when deciding whether the donor could sign the LPA or not. This involvement is akin to a solicitor acting on a will and deciding if the testator should really be making that will when taking into account their capacity and the influence of those people around them.
The donor was a mother of 3 children (‘KA’). In 2019 she made a Property & Finance LPA with all 3 of her children as attorneys. This was revoked by her in 2020. In 2021 KA made both Property and Finance (January) and Health & Welfare (June) LPAs which appointed KA’s daughter (‘TA’) as sole attorney. This, leaving out her other two children.
The certificate provider on the new LPAs was TA’s ex-mother in law (who was a close friend of KA). KA’s son (‘HC’), who was no longer an attorney in the new LPAs, instructed a solicitor to attend KA with a view to revoking the new LPAs. The solicitor’s opinion was that KA did not have capacity to execute the new LPAs. An investigation ensued and the Office of the Public Guardian suspended the LPAs in June 2022.
The OPG investigation highlighted that the certificate provider, whilst acting with good intention, had not understood the importance of her role. She knew TA and thought that she would look after her mother. The certificate provider had rubber stamped the LPAs without fully considering whether or not KA knew what she was signing and that she would be leaving out her other two children. Without taking this into account, the certificate could not validly put their name to the document. As mentioned in the judgment, it has to be more than asking and answering “are you happy with the LPA?”.
When interviewed by the OPG, KA appeared confused and still thought that she had her three children as attorneys. It was held at first instance that the new LPAs be revoked on the basis that the certificate provider did not check (1) that KA understood what she was signing, (2) she was not subject to undue influence and (3) there were no other barriers to the donor signing it. For instance, the donor may have capacity but still not understand the implications of having one attorney and leaving her other two children out. The judge noted that LPAs are significant documents that are used to make future important decisions for someone who has lost capacity, the certificate providers job should not be taken lightly.
This case therefore underscores the importance of ensuring that certificate providers fully understand their responsibilities and actively assess the donor's capacity and circumstances. It serves as a reminder that LPAs are significant legal documents with far-reaching consequences, particularly for individuals who may lose capacity in the future. Certificate providers must approach their role with diligence and integrity, ensuring they fulfil their obligations to safeguard the donor's interests.
For more information about Private Client cases that have recently gone to court, please read our overview blog of 'Contentious Private Client 2024' here.
Our team can assist with all types of LPA certification, For further advice please contact them on 01484 558058.
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.