All Lasting Powers of Attorney (LPAs) are required to have a certificate provider. A certificate provider is an impartial person who confirms that the donor understands what they are doing and that nobody is forcing them to make an LPA.
A certificate provider’s role is central to ensuring the validity of the LPA. By signing the LPA, the certificate provider is confirming that:
- The donor understands the significance of the LPA;
- The donor has not been put under pressure to make it;
- There has been no fraud involved in making the LPA, and
- There is no other reason for concern.
If possible, the certificate provider should discuss the LPA with the donor in private, without attorneys or other people present, before they sign to ‘certify’ their part of the LPA.
Who can be a certificate provider?
A certificate provider must be at least 18 years old and either:
- A friend, colleague, or someone the donor has known well for at least two years; or
- Their doctor or lawyer or someone with professional skills to judge whether the donor understands what they are doing and are not being forced to make an LPA.
Certificate providers cannot be members of the donor’s family or the attorney’s families.
Exercising judgment to ensure validity
The recent England and Wales Court of Protection’s decision in the case of TA v Public Guardian (2023 EWCOP 63) further highlights the importance of the role of certificate provider.
In this decision, it was found that the certificate provider had not gone far enough to satisfy themselves of the donor’s understanding and lack of undue pressure or fraud. The LPA was duly ruled invalid.
As the number of registered LPA’s are increasing, as are the number of disputes. This decision highlights that there are various circumstances, not necessarily relating to the capacity of the donor, in which an LPA can be challenged. It also emphasises the importance of the role of certificate provider and the requirement for them to exercise their judgement.
How M+A Partners can help
Should you have any queries regarding the role of certificate provider, or require further information on Lasting Powers of Attorney, please get in touch with our experts below or email enquiries@mapartners.co.uk