Certificate Providers and Lasting Powers of Attorney

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What is a Lasting Power of Attorney (LPA)

A Lasting Power of Attorney (LPA) is a legal document that allows an individual (the donor) to appoint one or more people (attorneys) to help them make decisions or to make decisions on their behalf if they become unable to do so themselves. There are two types of LPAs:

1. Health and Welfare LPA: This allows the attorney to make decisions about the donor’s personal health and welfare, such as medical treatment and living arrangements.
2. Property and Financial Affairs LPA: This allows the attorney to make decisions about the donor’s property and financial matters, such as managing bank accounts and paying bills.

For the modern age, having a Lasting Power of Attorney is essential for those who have property assets or money. It makes sure that your loved ones can manage your finances and also make welfare decisions for you in case you lack capacity.

Who is a certificate provider ?

As part of the process of executing a Lasting Power of Attorney (LPA), the application form must be supported by a person (the certificate provider) confirming that, as far as they are aware, the donor understands the purpose of the LPA, the scope of the authority and that there was no fraud or undue pressure being used to induce the donor to create the LPA.

The certificate provider must be either a person that the donor has personally known for 2 years before the date the LPA is signed or is an appropriate professional who has expertise and is competent to make the judgement. Examples of the people that can fall under this category are solicitors, a registered social worker, a health care professional and others.

Who should I choose to be my certificate provider? 

It should be someone who has the knowledge and expertise to carry out mental capacity assessments.

The case of The Public Guardian v RI & Ors [2022] EWCOP 22, the judge had to determine whether a person (the donor) had the mental capacity to create a Lasting Power of Attorney (LPA). This case is significant because it highlights the complexities involved in assessing mental capacity and the importance of having an experienced professional being your certificate provider.

Key Points of the Case

1. Who Was Involved?

• • The Public Guardian (applicant) and three attorneys (respondents).
  • The donor (the person who created the LPA) was not represented in the court.

2. What Was Decided?

• • The solicitor in this case had not completed a thorough capacity assessment before signing the certificate provider part of the LPA application form.
  • The court therefore needed to determine if the donor had the mental capacity to understand and sign the LPA looking at other evidence such as medical opinion.
  • Poole J concluded that the donor did not have the required capacity to execute the LPA.
  • As a result, the court ordered the cancellation of the LPA.

3. Why Was Capacity Important?

• • The judge went on to state that when determining if someone has the capacity to sign and execute an LPA, the certificate provider should assess the person’s mental capacity properly. He went onto to state that the following was relevant information for the purposes of completing the mental capacity assessment;
    • Understanding the effect of the LPA.
    • Knowing who the attorneys are.
    • Understanding the scope and limits of the attorneys’ powers.
    • Knowing when and how the LPA becomes effective.
    • Being aware of the donor’s right to revoke the LPA if they have the capacity.
    • Considering the advantages and disadvantages of creating the LPA.

Why You Need an Experienced Solicitor

This case has shown that having an experienced solicitor who understands the Mental Capacity Act is crucial. Solicitors with experience of capacity assessments ensure that a proper assessment of mental capacity is conducted with all the right information, reducing the risk of future disputes.

At ABA Solicitors Ltd, we have over 20 years experience in Court of Protection and Mental Capacity. We keep detailed attendance notes of the mental capacity assessment of the donor so if there is any challenge in the future, there is detailed evidence of the capacity assessment and outcome. This makes sure that the LPA is more robust and if there are any arguments from anyone regarding the donor’s capacity, the LPA can be defended.

Big changes coming for Lasting Powers of Attorney!

The government listened to feedback and made a new law about Lasting Powers of Attorney (LPAs). This means there will be a more modern way to set up an LPA in the future. Here’s what’s changing:

• Paper or digital: You’ll be able to choose whether to fill out the LPA forms on paper or online.
• Who registers: Only the person making the LPA (called the donor) can register it, not the person they choose to act for them (the attorney).
• Checking IDs: There will be new rules to make sure everyone involved is who they say they are.
• More people can object: If someone has concerns about an LPA, more people will be able to raise them.
• Notifications: The government will be responsible for letting certain people know when an LPA is registered.

What this means for you: The exact date of these changes have not been decided yet, but they will make the LPA process easier and more secure in the future.

At ABA Solicitors Ltd, we stay on top of the changes so you don’t have to.  Contact us now for a free consultation.