What responsibilities do Certificate Providers have for Lasting Powers of Attorney?

Earlier this year, the Court of Protection appealed against the decision that a Lasting Power of Attorney was invalid due to the Certificate Provider failing to address necessary questions with the donor when signing the document (TA v The Public Guardian).

In this blog, we look at the role of a Certificate Provider for a Lasting Power of Attorney.

What is a Lasting Power of Attorney?

A Lasting Power of Attorney (LPA) is a legal document that allows you to appoint people (known as ‘Attorneys’) to make decisions on your behalf about your finances, health and welfare should you be unable to do so yourself in the future.

You can decide exactly what decisions your Attorneys will be able to make on your behalf, ensuring your needs will be met without giving away more control than you are comfortable with. You can only make an LPA if you have the mental capacity to give instructions.

Types of LPA

There are two different types of Lasting Power of Attorney: Health and Care Decisions LPA, and Property and Financial Decisions LPA.

• A Property and Financial Decisions LPA can give your Attorney authority over decisions such as selling your home, collecting your pension, managing your bank account and paying bills.
• A Health and Care Decisions LPA (previously called Health and Welfare LPA) can give your Attorney authority over decisions such as what medical care you receive, whether you need to be moved into a care home and your daily routine, e.g. washing, dressing and diet.

Exactly what type of LPA you need and what specific issues it should cover will depend on your personal circumstances. If you need advice on making a Lasting Power of Attorney, our specialist team can help.

What is a Certificate Provider?

The role of a Certificate Provider is to make sure the Donor (the person who makes the Power of Attorney authorising others to make decisions about their affairs for them) understands what they are signing and that they’re not being forced to sign anything.

Certificate Providers must confirm the following before signing the LPA:

• They have read and discussed the LPA with the Donor.
• The Donor understands why the LPA is created and the authority given to the Attorney(s).
• The Donor is not under any pressure to sign the documents.
• The LPA is not being made fraudulently.
• There are no other issues that would prevent the donor from signing the document.

Ideally, the Certificate Provider will speak to the Donor separately and privately before signing and witnessing the document.

Who can be a Certificate Provider?

The Certificate Provider should be either someone who has known the Donor for at least two years or someone with the relevant professional skills, such as a solicitor, a capacity assessor or a doctor. They must also:

• Not be a relative, unmarried partner, employee or business partner to the Donor.
• Not be the Donor’s Attorney or replacement Attorney.
• Not be an owner, manager, director or employee of a care home where the Donor lives.
• Be aged 18 or over.

After the LPA is registered with the Office of the Public Guardian (OPG), concerns can be raised with the OPG and they can investigate the concerns. The OPG may ask the Certificate Provider to answer questions as to how they formed their opinion. The outcome of the investigation might result in an application to the Court of Protection for a judge to decide what should happen.

TA v the Public Guardian: what happened?

In the case of TA v the Public Guardian, the Donor’s daughter had been appointed as her sole Attorney for two LPAs, replacing a previous LPA that favoured all her three children.

One of the Donor’s sons challenged the LPAs and, during an investigation by the Office of the Public Guardian, it was discovered that the Donor wanted all three of her children to make decisions on her behalf.

The Lasting Powers of Attorney were suspended. The question arose surrounding the role of the Certificate Provider (who, in this case, was a friend of the Donor) and whether they had taken the appropriate steps to ensure the Donor understood what she was doing when she made the LPAs.

The court determined that the Certificate Provider failed to carry out the necessary assessment to form an opinion before signing the LPAs. The LPAs were held to be invalid and were cancelled.

Do you need a solicitor to make a Lasting Power of Attorney?

LPAs can be made without a solicitor; however, this is not recommended as it could cause problems later on, especially if the matter is complex. Instructing a specialist LPA solicitor helps ensure all the paperwork is completed correctly and reduces the risk of mistakes, including those related to Certificate Providers assessment. Having a solicitor at your side offers peace of mind that everything is correct for such a powerful document and that your best interests are protected.

Our highly experienced lawyers can guide you through the entire process of creating and registering the most appropriate Power of Attorney for you.

Contact our Lasting Power of Attorney solicitors

If you need to create, update, revoke or register a Lasting Power of Attorney or are looking for advice on discharging your duties as an Attorney, our team might be able to help. Call our Power of Attorney solicitors on 0117 325 2929 or complete our online enquiry form.