In this instalment of our ever-popular ICYMI series, we take a look at TA v The Public Guardian [2023], 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’).
What does Schedule 1, paragraph 2(1)(e) state?
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?
The certificate provider must be either:
- a person who the donor has known personally for at least two years as more than an acquaintance, for example a friend or colleague; or
- a person with relevant professional skills and expertise to act to fulfil the role of a certificate provider, for example a medical professional, social worker or legal professional.
The Claim
In this case, the donor (KA) had initially made an LPA for her property and financial affairs, appointing all three of her children to act as her attorneys. This LPA was later revoked and on 12th January 2021, she made a new LPA for her property and financial affairs appointing one of her 3 children, TA (her daughter) as her sole attorney. This LPA was registered with the OPG on 16th March 2021. She later signed her health and welfare LPA on 1st April 2021 which was registered by the OPG on 22nd June 2021 where TA was again appointed as her sole attorney.
The certificate provider for both LPAs was TA’s former mother-in-law and friend.
In September 2021, the donor’s son sought to revoke the LPAs and create new LPAs appointing all the children as the attorneys but the donor was not deemed to have the requisite capacity to sign a new LPA.
The OPG investigated the matter and although the certificate provider determined that the donor had not been pressurised into making the LPA, a COP visitor, upon speaking to the donor was advised by the donor that she wasn’t aware why her daughter had been appointed as her sole attorney for her affairs.
The below was part of the certificate provider’s response when she was questioned on her role as the certificate provider:
Regarding discussions I had with her about the LPAs, I just asked her if she was happy about it, and she was. I spoke to her about it on the phone, and I expect her partner was in the room with her during the conversation. I do not feel [KA] was under any pressure to make the LPAs as she sounded cheerful and was in good spirits. She sounded like her normal, usual self. [KA] did not express any particular wishes to me about who she wanted to be her attorneys. She did not express any wishes about how her attorneys should act. [KA]’s daughter [TA] has always been a wonderful, caring daughter to her mum They have always had a loving, close relationship. Sue has always acted in her mum’s best interests. I find it shocking that [TA]’s care for her mum is being questioned, as she has only ever been an amazing daughter to [KA].
The OPG, upon carrying out their investigation, applied to cancel the LPAs on the basis that they were not deemed to be valid.
The Verdict
The judge in the first instance found that the certificate provider had not provided sufficient evidence that satisfied the requirements of paragraph 2(1)(e) Schedule 1 of the Mental Capacity Act had been met. Rather asking “if she was happy about it” was not sufficient in itself and did not evidence that the donor understood the scope of her authority, that there was no undue influence or pressure or anything else to prevent the LPA from being created.
In her interpretation of paragraph 2(1)(e), the judge concluded that:
“37….I consider that there are some aspects of the relevant legislation that provide clear guidance to a certificate provider as to what is expected of them. I start with section 2 (e) of schedule 1. The certificate provider is required to provide an opinion, not just to witness a signature, and it is an opinion that : i) the donor understands the purpose of the instrument and the scope of the authority conferred under it, ii) no fraud or undue pressure is being used to induce the donor to create a LPA, and iii) there is nothing else which would prevent a LPA from being created by the instrument.
- In my judgment, reading the above section as ‘ordinary words’ plainly requires the certificate provider, in order to provide the certificate, to take some steps to satisfy themselves of the matters set out in section 2 (e), otherwise they cannot be considered validly to provide the opinion. This opinion is one of the requirements for the creation of an LPA, and what is required is the provision of an opinion, not merely the witnessing of a signature.
- If the Court is asked, as I am, to exercise its powers under section 22 of the MCA, namely to ‘determine whether one or more of the requirements for the creation of a LPA have been met’, it follows that the Court must be entitled to look for evidence that the requirements have been met. Such evidence has manifestly not been provided in the current case, limited as it is to simply the asking and answering of a question “are you happy with the LPA”?
- … It is difficult to understand how the certificate provider could conceivably have satisfied herself that [KA] ‘understood the scope of the authority, that there was no undue pressure or inducement, and that there was nothing else to prevent the LPA being created‘ without asking the very questions of the donor that were set out in the enquiries by the OPG investigator.
- An opinion provider must, as a matter of basic common sense, never mind legal sense, satisfy themselves that their opinion is reasonably held, otherwise they are acting in a plainly unreasonable way. This is not to open some vast floodgates, to import some highly technical or supremely onerous duties upon the certificate provider, just that which is basically to be expected in order to satisfy the provisions of section 2 (e). If they do not so satisfy themselves then they are outwith the requirements of that section…”
On this basis the LPAs were found to be invalid.
This decision was appealed by TA. Her appeal was dismissed.
Paragraph 2(1)(e) requires a certificate and for that certificate to have particular content in that there needs to be an opinion on the three specific matters. A valid certificate must therefore be based upon an opinion about those 3 matters. If the evidence put forward does not demonstrate that the certificate provider had an opinion, the certificate would not be valid.
The Courts are entitled to check that the opinion was formed.
Points to Consider
This case demonstrates the importance of the role of a certificate provider and what is expected of them in that it is not simply a signature that they need to put to paper but rather much more than that. A failure to have regard to the 3 matters could deem an LPA invalid.
As a matter of best practice, where you are acting as a certificate provider, you should always ensure you make yourself familiar with paragraph 2(1)(e) and use it as a basis for your questions to ensure you can reach an opinion. Always ensure detailed notes are taken if this was ever challenged as this can be presented as part of the evidence. Make a note of the questions asked to the donor, the response provided by the donor and lastly your opinion.
