Lasting Powers of Attorney (LPA) are an important legal document in which a person appoints attorneys to act on their behalf if they are unable to make decisions for themselves, for example, if they lose mental capacity.

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There are two types of LPA, one for health and welfare decisions and one for financial decisions. Both types of LPA need to be in a prescribed form and must be registered with the Office of the Public Guardian before they can be used.

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In making an LPA for property and financial affairs and/or health and welfare decisions, it is necessary for a certificate to be provided to confirm that the person making the LPA has the capacity to do so and is making it of their own free will. The Office of the Public Guardian guide to making a Lasting Power of Attorney states that:

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The person making the LPA must confirm that:

• They understand the significance of the LPA
• They have not been put under pressure to make it
• There has been no fraud involved in making the LPA
• There is no other reason for concern

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Who can be a certificate provider?

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Regulation 8 (1) of the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007 sets out that a certificate provider can either be:

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a)   a person chosen by the person entering into the LPA as being someone who has known him personally for the period of at least two years which ends immediately before the date on which that person signs the LPA certificate; or

b)   a person chosen by the person entering into the LPA who, on account of his or her professional skills and expertise, reasonably considers that they are competent to make the judgments necessary to certify the matters set out in paragraph (2)(1)(e) of Schedule 1 to the Act.

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It is important that the certificate provider is someone who is competent to assess your understanding of the significance of the LPA, satisfy themselves that you have not been put under any pressure to make it, there is no fraud involved and there are no other causes for concern.

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If your chosen certificate provider is not aware of this, which may be the case with certificate providers who are not professionals and are simply asked to sign the document for example as a friend, without understanding their role this could have disastrous consequences for the validity of the instrument.

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The recent case of TA V Public Guardian (2023 EWCOP 63) highlights the responsibilities of a certificate provider when an LPA is being made and sets out the exact requirements of the certificate provider to ensure that the LPA is valid.

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The ruling of the Court in the TA V Public Guardian case highlighted that failure of the certificate provider to satisfy themselves fully as to all relevant factors, can render the LPA invalid.

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If it is found that an LPA is invalid for any reason, and the person who entered into the LPA has lost capacity, the only option available to the family is to make an application to the Court of Protection for a Deputy to be appointed to make decisions in the best interests of the donor. This can be costly, complex and cause delays.

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It is therefore important when making an LPA to consider carefully your choice of certificate provider and, if in doubt, instruct a legal professional to draft the LPA and act as your certificate provider.

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The private client team at FMGS are more than happy to discuss this further should you wish to make an LPA or have concerns about an LPA already in existence. To find out how we can help you with an LPA, you can reach us at 01524 61660 or via email at enquiries@fmgs.co.uk.

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