When making a Lasting Power of Attorney (LPA), you require a Certificate Provider to certify the donor’s capacity to make the LPA. A Certificate Provider under an LPA acts as an important safeguard in ensuring that the Donor had the necessary mental capacity when they signed the LPA, that they made the LPA of their own free will without duress, and that they understand what it means to make the LPA and the power it grants to their chosen attorneys.
You may recall the case of TA v The Public Guardian [2023], which was a case that came about due to a challenge by the Office of the Public Guardian (‘OPG’) as to the validity of LPAs for both Property and Financial Affairs and Health and Welfare (‘the LPAs’). They argued that the LPAs did not comply with paragraph 2(1)(e) Schedule 1 of the Mental Capacity Act (‘the 2005 Act’).
Under Schedule 1, paragraph 2(1)(e) Mental Capacity Act 2005, an LPA is only valid if it includes a certificate signed by a person (the certificate provider) confirming that in their opinion, at the time the donor executes the LPA:
- the donor understands what an LPA is and understands its content
- the donor understands what powers they will be giving to their attorneys in their LPA
- the donor is not being pressured in any way or under duress by someone else to make the LPA and they are doing this of their own free Will; and
- there is nothing else that would prevent the LPA from being created.
Who can be a Certificate Provider?
Certificate Providers must be at least 18 years of age, act independently in fulfilling their role, and not fall into one of the restricted categories (see ‘Constraints’ below).
- Category A: Personal ‘knowledge-based’ Certificate Provider
Anyone who has known the Donor for at least two years before the date when the Certificate Provider signed and confirmed the Donor’s capacity. This can be a friend, neighbour, colleague, or former colleague of the Donor. It must be someone who is more than an acquaintance, who can have an honest conversation with the Donor about what it means to create an LPA. This can be one of the people who witnessed the LPA.
- Category B: Professional ‘skills-based’ Certificate Provider
Anyone who, due to their professional training, reasonably believes they can make judgments as to the capacity or lack thereof of the Donor making the LPA. This can be a medical professional (Doctor, GP), Legal professional, registered Social Worker, or an Independent Mental Capacity Advocate (IMCA). This can be the Estate Planner who helped complete and register the LPA on behalf of the Donor, as long as they reasonably believe to be able to judge the Donor’s capacity.
Who cannot be a Certificate Provider?
The following persons are excluded from acting as Certificate Providers for any LPA:
- an Attorney or replacement Attorney for that LPA.
- an Attorney or replacement Attorney in any other LPA or Enduring Power of Attorney the Donor made.
- a family member of the Donor or of their Attorneys’ families including wives, husbands, civil partners, in-laws and step-relatives.
- an unmarried partner, boyfriend or girlfriend of the Donor or of any of their Attorneys.
- a business partner of the Donor or their Attorneys’ business partners.
- an employee of the Donor or their Attorneys’ employees.
- an owner, manager, director or employee of a care home where the Donor lives or a family member of a person associated with the care home.
- anyone running or working for a trust corporation appointed as an Attorney in a Financial LPA.
Certification: What must a Certificate Provider do?
Certificate Providers must sign and date Section 10 of the Donor’s LPA, and in doing so confirm that:-
(1) the Donor understands the purpose and nature of the LPA created
(2) the Donor is under no fraud, pressure or undue influence in making the LPA, and
(3) there is nothing else which would prevent the LPA from being created and registered.
For an LPA to be successfully registered with the Office of The Public Guardian (OPG), the Certificate Provider must sign and date Section 10 on the same day or after the Donor has signed and dated Section 9 of the LPA.
For advice tailored to your circumstances, speak to one of our members. You can find a member in your area by entering your postcode in our Find a Member search page or by calling the office on 01522 687 888.
