Lasting Powers of Attorney (‘LPAs’) are legal documents that let you (the ‘donor’) choose trusted people (‘attorneys’) to make property and financial decisions or health and welfare decisions on your behalf.
As part of the process of making an LPA a certificate provider is required. A certificate provider is an impartial person who confirms that the person making the LPA understands the purpose of the document, the scope of authority conferred under it and has not been put under undue pressure to make the LPA, there has been no fraud involved and there is no other reason for concern.
The law provides that a certificate provider must be at least 18 years old and a person chosen by the donor:
The certificate provider must be independent and the list of who cannot act is quite restrictive. As such, there are many people who cannot be the certificate provider including members of the either the donor or their chosen attorneys’ families, business partners and employees.
The role of certificate provider has recently been scrutinised by the Court, highlighting how important it is to choose the right person to act in this role to ensure your LPA has been validly created.[1] In the case, the certificate provider was a long standing friend of the donor. They spoke on the telephone about the LPAs and the Court was told: “I just asked her if she was happy about it, and she was”.
The Court said simply asking the donor if they were happy was not sufficient. A certificate provider must form a reasonable opinion, satisfying themselves that the donor understands the document, is not subject to fraud or undue pressure and there are no other barriers to the LPA. The Court found the LPA was not valid.
The case demonstrates how using a knowledge based certificate provider such as a friend results in a risk that the LPA is not valid because of a poorly formed opinion, even where the donor has mental capacity.
Even when using a skills based certificate provider, you need to ensure they have expertise in this particular area of law – something which was highlighted recently when a criminal defence solicitor who certified LPAs as ‘a favour’ for an elderly client was fined for failing to fulfil the role properly.
It is best to choose someone who has proven expertise in this area, such as an accredited member of the Association of Lifetime Lawyers, to assist when making LPAs. They can support you through the process of creating your LPAs, as well as providing expert legal advice and guidance on the appointment of attorney(s), your specific instructions and preferences and, in most instances, act as your skills based certificate provider.
A certificate provider is far more than just a witness and it’s crucial that you choose the right person to perform that role for you to ensure your LPAs are valid.
Written by Bekka Fuszard TEP, Associate Solicitor at Whitehead Monckton and accredited Lifetime Lawyer
This article has also been published online by The Association of Lifetime Lawyers in September 2024.
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[1] TA v The Public Guardian [2023] EWCOP 63
