What is a Certificate Provider?
A Certificate Provider is an independent individual who certifies that the donor of a Lasting Power of Attorney (LPA) has capacity to enter the document; understands the ramifications and authority being provided within the document; and that the donor is entering into the document of their own free will, without undue pressure or influence.
A Certificate Provider must either be a professional with the requisite knowledge of capacity, such as a GP, social worker, or solicitor; or a friend or neighbour of the donor who has known them personally for at least two years.
A recent case, TA v The Public Guardian 2023 EWCOP 63, reminds us that the role of the Certificate Provider in making LPAs is an important one and not something to be undertaken lightly.
The role of a Certificate Provider – the law
Under paragraph 2(1)(e) of Schedule 1 of the Mental Capacity Act 2005, a Certificate Provider essentially provides an opinion on whether the donor understands the document and the scope of the authority they are providing to their attorney(s); and that the donor is not subject to any undue influence or pressure. The Certificate Provider is also confirming that they are not aware, and neither is the donor, of anything which would prevent the document from being completed.
Should a dispute arise regarding the validity of a LPA, a Certificate Provider can be called to provide evidence on the donor’s capacity.
The role of a Certificate Provider is therefore not a passive one; there is an obligation on the Certificate Provider to satisfy themselves that the donor meets the criteria noted above and that they would be happy to provide evidence in court of the same if required.
TA v The Public Guardian 2023 EWCOP 63
In brief, the case arose from a challenge by the Office of the Public Guardian (‘OPG’) to the validity of Lasting Powers of Attorney instruments for both Property and Financial Affairs and Health and Welfare (‘the LPA’s’), on the basis that they did not comply with paragraph 2(1)(e) Schedule 1 of the Mental Capacity Act 2005.
The Court of Protection (COP) (Lieven J) has confirmed that in order for the Certificate Provider’s certificate to be effective, it must be based on the opinion of the Certificate Provider as to three matters specified in paragraph 2(1)(e) of Schedule 1 to the Mental Capacity Act 2005 (MCA 2005) as outlined above. The provision of a certificate in the correct form is insufficient on in isolation.
Lieven J reconsidered the decision of HHJ McCabe but held that the approach of the judge at first instance was correct. A valid certificate must be based on the Certificate Provider’s opinion at the time when the donor executes the instrument as to the matters in paragraph 2(1)(e).
In highlighting the importance of the certificate in the procedure for creating a valid LPA, the judge explained that the legislation is in place to provide safeguards and it goes much further than the question of whether the donor has capacity. If the validity of a LPA comes before the Court of Protection, the Court is entitled to consider how the Certificate Provider formed their opinion and, if the evidence shows that they did not fully consider the requirements and satisfy themselves of the donor’s intentions and wishes, the LPA may be declared invalid.
The importance of seeking advice when preparing LPA
The judgement has shone a light on LPAs and affirmed the requirements when acting as a Certificate Provider. It also acts as a cautionary tale to consider your Certificate Provider carefully.
Please get in touch with our team of experts if you would like to discuss any of the issues raised in this article.
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The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at February 2024.