Lasting Powers of Attorney — a validity warning to certificate providers

In 2023, the Ministry of Justice reported that more than six million Lasting Powers of Attorney (LPAs) had been registered to date. 

As it’s becoming more popular to create LPAs — and with many practitioners and lay people being part of the process — it’s important to highlight the key role that certificate providers play.

Here, Cathryn McCorkindale outlines the requirements that all certificate providers must follow to ensure the validity of an LPA.

Certificate providers — what’s required?

An LPA is a legal document where you (the donor) choose one or more people (attorneys) to make decisions on your behalf.

There are two types of LPA — one concerns property and finance and the other handles health and welfare.

After the documents have been prepared, the donor and the attorneys will all need to sign them. A certificate provider also needs to sign to confirm that the donor understands the purpose of the LPA and is entering into the agreement by choice. 

The certificate provider can’t be one of the attorneys, a member of the donor’s family, an employee or a business partner.

The Office of the Public Guardian advises that the certificate provider must certify that:

• the donor understood the purpose of the document and scope of the authority conferred in it
• no fraud or undue pressure is being used to induce the donor to create the LPA
• there is nothing else that would prevent this LPA from being created.

A certificate provider must:

• be over 18 years of age
• have read the LPA
• have no restriction on them acting as certificate provider
• have the relevant skills and expertise to act or be known by the donor for at least two years. 

Importance of the ‘decision’

In TA v Public Guardian [2023] EWCOP 63 (TA v Public Guardian), the Court of Protection confirmed that the validity of an LPA is based on the decision of the certificate provider, rather than the completed form. This alone is insufficient to validate the document.

The background of the case

The appellant appealed against a decision that the LPAs made by her mother (M) were invalid and should be cancelled. M originally executed LPAs that appointed her three children as attorneys. She later revoked this and created new LPAs to appoint the appellant as the sole attorney. 

M’s son instructed solicitors with the view to apply to revoke the new LPAs. The solicitors met with M and formed the opinion that she lacked the mental capacity to have made her new LPAs. The Office of the Public Guardian launched an investigation into the matter and in determining whether the requirements of the creation of the LPA had been met, the judge turned to the decision of the certificate provider, who was the appellant’s ex-mother-in-law.

Determining capacity

The judge held that the certificate provider simply asking whether M was “happy with the LPA” didn’t validly provide an opinion as to whether M had the capacity to make the documents as per the requirements listed above. 

As such, the judge held that the LPA failed to meet the legal requirements to be a valid document.

Appealing the decision

The appellant submitted an appeal on the basis that the statutory scheme set out in clear terms that so long as the certificate provider provided a certificate, it was sufficient for legal purposes. Under Sch 1 para 2(1)(e) of the Mental Capacity Act 2005, the mere provision of a certificate in the correct form is sufficient on its own. 

Lieven J refused the appeal and held that the decision by HHJ McCabe in the first instance was correct. A valid certificate must be based on the certificate provider’s opinion at the time the donor executes the LPA. A certificate provider should base its decisions on the matters referred to above. 

A warning to certificate providers

The certificate provider is a very important part of the LPA procedure. Anyone who acts as a certificate provider should consider their decision carefully before agreeing to sign the LPA.

The case of TA v Public Guardian reiterates that the certificate provider role offers safeguards and goes beyond whether the donor is “happy with the LPAs”. If the validity of an LPA comes into question by the Court of Protection, the Court will check that the certificate provider formed the requisite opinion. 

If there is evidence to the contrary, the LPA could be invalid.

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Our private client team is highly experienced in drafting effective Lasting Powers of Attorney documents and handling complex Court of Protection matters.