One of the most important safeguards when creating a Lasting Power of Attorney (LPA) is the requirement for an LPA Certificate Provider. While the role is sometimes viewed as a formality, it is intended to help protect the donor from fraud, undue pressure and other concerns that could affect the validity of the LPA.
The certificate provider is not simply another witness. They must be satisfied that the donor understands the document and is creating it freely. This article explores the role of a certificate provider, who can act and the practical considerations that should be kept in mind before signing.
What Does an LPA Certificate Provider Confirm?
Under Schedule 1, paragraph 2(1)(e) Mental Capacity Act 2005, the certificate provider confirms that:
- the donor understands the purpose of the LPA and the extent of the authority being given to the attorneys;
- no fraud or undue pressure is being used to induce the donor to create the LPA; and
- there is no other reason why the LPA should not be created.
Undue pressure is influence that overcomes the donor’s independent decision-making. It is more than simply offering advice or expressing an opinion.
For example, an adult child may properly suggest that their parent considers making an LPA. Concerns may arise, however, if the child threatens to withdraw care or contact unless they are appointed as the sole attorney.
The importance of the certificate provider’s role was highlighted in TA v The Public Guardian [2023] EWCOP 63. The case confirmed that the role is not simply to provide a signature. The certificate provider is an important part of the statutory safeguards intended to protect the donor and the integrity of the LPA process.
If the validity of an LPA is later disputed, the Court of Protection may require evidence from the certificate provider about the enquiries they made and how they reached their opinion.
The certificate provider should therefore speak directly with the donor and ask appropriate questions to establish that the donor understands the LPA and is acting freely. Where practicable, this discussion should take place without the proposed attorneys or other interested people present.
It is also highly advisable for the certificate provider to make a written record at the time. This should include:
- the questions asked;
- the donor’s answers;
- who was present; and
- the reasons why the certificate provider concluded that the certificate could properly be given.
Who Can Act as an LPA Certificate Provider?
A certificate provider must be at least 18 years old and have the mental capacity to understand the nature and significance of the confirmation they are giving.
They must also fall within one of two categories.
A Person Who Has Known the Donor Personally
The certificate provider may be someone who has known the donor personally for at least two years. They must know the donor as more than a casual acquaintance.
A longstanding friend, neighbour or former colleague may qualify. They should know the donor well enough to form a meaningful view about whether the donor understands the LPA and is acting voluntarily.
A Person with Relevant Professional Skills
Alternatively, the certificate provider may be someone with relevant professional skills or expertise. This may include:
- a legal professional;
- a registered healthcare professional;
- a registered social worker; or
- another professional with appropriate experience in assessing capacity.
A professional certificate provider does not need to have known the donor for two years. They must, however, make sufficient enquiries to satisfy themselves that the required confirmations can properly be given.
A professional may charge a fee for acting.
Who Cannot Act as an LPA Certificate Provider?
Certain people cannot act because their involvement may create a conflict of interest or undermine their independence.
A certificate provider cannot be:
- an attorney or replacement attorney appointed under the LPA;
- an attorney or replacement attorney under another LPA or Enduring Power of Attorney made by the donor;
- a member of the donor’s family;
- a member of an attorney’s family;
- an unmarried partner of the donor or an attorney;
- a business partner or paid employee of the donor or an attorney;
- a director or employee of a trust corporation appointed as an attorney; or
- an owner, director, manager or employee of a care home in which the donor lives, or a family member of such a person.
The meaning of “family member” can sometimes cause difficulty. In Re Kittle [2009] EWHC 1952 (Ch), the court concluded that a cousin did not fall within the relevant statutory definition.
Despite this, Office of the Public Guardian guidance recommends caution where there is any family connection. Choosing someone who is clearly independent can reduce the risk of difficulties if there is a later challenge.
Practical Points
The LPA must be signed in the correct order:
- the donor signs first in the presence of a witness;
- the certificate provider signs after the donor; and
- the attorneys and replacement attorneys then sign in the presence of their respective witnesses.
The LPA Certificate Provider should not sign until they are satisfied that each of the required confirmations can properly be given.
If the donor’s understanding or freedom of decision is later disputed, the Court of Protection may examine the circumstances in which the document was signed.
A clear written record made by the certificate provider at the time may therefore provide important evidence.
Conclusion
An LPA Certificate Provider plays an important role in safeguarding the donor and the integrity of the LPA process. The position requires more than simply witnessing a signature. The certificate provider should make appropriate enquiries, satisfy themselves that the donor is acting freely and retain a clear record of the steps taken before signing.
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This article is provided for general information only and does not constitute legal advice. Any advice, wording or clauses referred to are illustrative and should not be relied upon as precedent without full consideration of the client’s circumstances, the will as a whole, and the law in force at the relevant time.
