What is a Lasting Power of Attorney?
A Lasting Power of Attorney (LPA) is a legal document that allows a person (the ‘donor’) to appoint one or more people (known as ‘attorneys’), to help them make decisions or to make decisions on their behalf. There are two types of LPA:
Property and Financial Affairs
- Gives the attorney(s) the power to assist the donor with financial decisions. Such as: managing their bank accounts, paying bills or buying and selling property.
- Can be used to assist the donor before they lose mental capacity or can be restricted to only be used once the donor has lost mental capacity to manage their own finances.
Health and Welfare
- Gives the attorney(s) the power to make decisions on behalf of the donor in relation to personal decisions surrounding their care and medical treatment.
- Can only be used if the donor lacks capacity to make the decision for themselves.
What is a Certificate Provider and what do they do?
Unlike an attorney, a Certificate Provider is not appointed to assist the donor with making any decisions once the LPA is in place. They do however play a very important role in the creation of the LPA document itself.
A Certificate Provider acts as an impartial person who signs to confirm that the donor understands the significance of the LPA they are making. They make sure that they understand the extent of the powers given by the LPA, and that they are not being forced into making one. It’s a requirement for all LPAs to be signed by a Certificate Provider.
So, what does this actually involve? The Court of Protection have recently clarified the importance of the role in the case of TA v the Public Guardian (2023 EWCOP 63). In this clarification, it was held that a Certificate Provider must take steps to satisfy themselves that the conditions of Schedule 1, paragraph 2(1)(e) of the Mental Capacity Act 2005 are met before signing the LPA.
The Mental Capacity Act 2005 provides for the requirement of the Certificate Provider to sign the LPA confirming that, in their own opinion, at the time the Donor signs the LPA:
- the donor understands the purpose of the instrument and the scope of the authority conferred under it,
- no fraud or undue pressure is being used to induce the donor to create a lasting power of attorney, and
- there is nothing else which would prevent a lasting power of attorney from being created by the instrument
The judge in the case held that in the event of the LPA being challenged in Court, the Court must look for evidence that these requirements have been met. It is no longer sufficient simply for the certificate to have been provided. The judgement serves as a helpful reminder that the role of the Certificate Provider should not be taken lightly. It’s much more than a simple tick box exercise.
Can anyone be a Certificate Provider?
The Office of the Public Guardian is the governing body responsible for the registration of LPAs and the supervision of acting attorneys. They’ve provided the following helpful information on who can or cannot act as a Certificate Provider.
The Certificate Provider must be 18 years old or over and have mental capacity. They can be either:
- someone who has known the donor personally for at least 2 years, such as a friend or neighbour (but not a relative) and must be more than an acquaintance
- someone with relevant professional skills, such as the donor’s GP or a solicitor
The Certificate Provider cannot be:
- any attorney or replacement attorney for this or any other LPA or enduring power of attorney that the donor has made
- a member of the donor’s family or of any of the attorneys’ families – including husbands, wives, civil partners, in-laws and step-relations
- an unmarried partner, boyfriend or girlfriend of the donor or any of the attorneys
- the donor’s business partner or any attorney’s business partner
- the donor’s employee or any attorney’s employee
- anyone running or working for a care home where the donor lives, or a member of their family
- anyone running or working for a trust corporation appointed as an attorney in this LPA
- the donor
- any other person the Court of Protection may consider is not sufficiently independent
Conclusion
Clearly the role of the Certificate Provider is an important task. It shouldn’t be undertaken lightly. If you’ve been asked to be a Certificate Provider and have any doubts, then you should always seek extra advice.
If you’re making a Lasting Power of Attorney, instructing a legal professional can give you that extra reassurance. At Rothera Bray we’re experienced with helping people with their LPAs. Provided you’re not appointing us as your professional attorney, we can act as your Certificate Provider.
If you would like any advice on Lasting Powers of Attorney, you can contact our Wills and Probate team on 03456 465 465 or email enquiries@rotherabray.co.uk
Disclaimer: This blog is for information only and does not constitute legal advice. If you need legal advice, please contact us on 03456 465 465 or email enquiries@rotherabray.co.uk to get tailored advice specific to your circumstances from our qualified lawyers.
