The Office of the Public Guardian (OPG) is the public body that deals with Lasting Powers of Attorney.

The OPG website explains:

The certificate provider must discuss the Lasting Powers of Attorney (LPA) with the donor. This discussion should be private, without the attorneys or anyone else present.

The certificate provider signs the LPA to certify that they have discussed the LPA with the donor and that:

• the donor understands the significance of their LPA

• no one is putting the donor under pressure to make the LPA

• there has been no fraud involved in making the LPA

• there is no other reason for concern

The donor must sign the LPA before the certificate provider. The certificate provider can witness the donor’s signature.

Who can be a certificate provider?

The certificate provider must be 18 or older and have mental capacity.

They can be either:

1. Someone who has known the donor well for at least 2 years—this could be one of the donor’s friends or neighbours, someone they know at a social or sports club, a work colleague, or someone similar.

   The certificate provider must be more than an acquaintance. They have to know the donor well enough to have an honest conversation about the LPA and the power the donor gives to their attorneys.

2. Someone with relevant professional skills

Usually, someone with relevant professional skills would be one of the following:

• a qualified and experienced member of the Institute of Professional Willwriters, the Society of Willwriters or the BEST Foundation

• a registered healthcare professional, such as the donor’s GP

• a solicitor, barrister or advocate

• a registered social worker

• an independent mental capacity advocate (IMCA)

If you choose a professional, including your GP, they may charge you a fee for their time and skill.

Who cannot be the certificate provider?

The certificate provider cannot be any of these:

• any attorney or replacement attorney for any LPA or enduring power of attorney that the donor has made

• a member of the donor’s family or any of the attorneys' families – including husbands, wives, civil partners, in-laws and step-relations

• an unmarried partner, boyfriend or girlfriend of the donor or any of the attorneys

• the donor’s business partner or any attorney’s business partner

• the donor’s employee or any attorney’s employee

• anyone running or working for a care home where the donor lives or a member of their family

• anyone running or working for a trust corporation appointed as an attorney in this LPA

• the donor

• any other person the Court of Protection may consider is not sufficiently independent.

Choosing the right certificate provider is crucial.

A recent legal case has clarified that a certificate provider’s role is more than simply witnessing a signature or signing in a box. The certificate provider has a duty of care to talk about Lasting Powers of Attorney with the person making it. Knowing someone for 2 years is not sufficient.

A recent legal case

Let’s look at the legal case that explains the certificate provider’s role in more detail:

In TA v The Public Guardian [2023], LPAs had been drawn up, appointing one daughter as her mother’s sole attorney. The LPAs replaced previous powers of attorney, which appointed the donor's three children. The validity of the LPAs was challenged in Court by the son, who had been one of the co-attorneys to the previous LPAs. It was established that their mother, the donor, had assumed that the new LPAs would continue to require all three children to act together as Attorneys.

The attention then fell on the certificate provider to the LPAs and their role.

In practice, a certificate provider confirms that the donor has the mental capacity to implement their LPA, they understand it, and there is no undue pressure.

In the case of TA v The Public Guardian [2023], the question was whether the certificate provider, who was a family friend of the donor and not a professional, had taken sufficient steps to ensure the donor understood the scope of authority granted to the Attorneys within their LPA. This highlights the importance of choosing a professionally qualified certificate provider.

The daughter of the donor contended that, as the certificate had been validly signed, that should be sufficient evidence that the certificate provider had fulfilled their legal duty. She argued that the Court did not need to investigate further.

This argument failed at first instance – the judge held that the Mental Capacity Act:

“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 means that the signing of the certificate in itself is not sufficient without the availability of supporting evidence where the validity of the certificate is questioned.

The daughter appealed this point to the Court of Protection. Her argument was also rejected, with the Court stating:

“the Court is entitled to check that the requisite opinion has actually been formed… The mere provision of a certificate in the right form cannot be sufficient on its own”.

If a certificate provider knowingly signs a certificate, making a false statement that they have no concerns with the donor giving effect to the LPA, a civil action for contempt of Court may be brought against them. But there is perhaps an emphasis on the word knowingly. A certificate provider who has been duly diligent in addressing the circumstances around the donor, the LPA and its signing is making a statement in good faith.

Would such a case make it to Court?

It seems unlikely as the certificate provider’s statement is not a statement of truth. But nevertheless, the Office of the Public Guardian could argue for damages for wasting the court’s time.

What does the law require?

Let’s summarise the judgment and the legal position:

1. The donor must understand the purpose of the LPA and the scope of authority conferred under it.

   In effect, this is a check for mental capacity by applying the tests for lack of capacity within the Mental Capacity Act 2005. It’s useful to remember that these tests are different from those for the capacity to make a Will, set out in the precedent of Banks v Goodfellow. A legal professional with suitable training will understand the difference. They should be able to ask appropriate questions, and should record answers that demonstrate sound judgment.

2. No fraud or undue pressure is being used to induce the Donor to create this LPA.

   The same principles apply here – all Institute of Professional Willwriters members are trained to identify undue pressure and coercion, so again, this element should not be a barrier to their acting.

3. There is nothing else which would prevent the LPA from being created by the completion of the instrument.

4. Then we come to the rather more vague statement which is more difficult to ‘sign off’ by the certificate provider.

   I certify that, as far as I am aware, at the time of signing section 9…’

This is important because the term ‘as far as I am aware’ was changed from ‘in my opinion’. The difference is that ‘in my opinion’ requires merely a statement of opinion. Now, ‘as far as I am aware’ requires taking specific steps to validate that nothing else would prevent this LPA from being created.

Importantly, acting as a certificate provider does require a degree of proactivity in investigating these points. Most professionals will make comprehensive contemporaneous notes as an important safeguard for you, your choices and their own due diligence.

What does ‘pro-activity’ look like?

In essence, this is an in-depth discussion of elements such as:

• Does the Donor understand what an LPA is and what it would achieve?

• It is helpful to ask the Donor why they are choosing certain friends or family members as Attorneys and, equally importantly, why some are not being appointed.

• Can the donor provide a summary of the instructions they have provided?

• Ask if there is anything else you should know as a certificate provider and minute the answer.

What should I do if fraud or undue influence is suspected?

If a neighbour, friend, colleague, or family member asks you to be a certificate provider, you must read the guidance provided by the Office of the Public Guardian before you agree to act. You have a personal duty of care to know and understand your role and the safeguards to prevent coercion or undue influence.

If you suspect someone is pressured to make a Lasting Power of Attorney, you should refer the matter to the police.

Where a Lasting Power of Attorney is already in place, if you suspect abuse or fraud, you should report your suspicions to the police and the Court of Protection.

Contact us today. We’re here to help.

Please note that information provided on the Carisma Wills website:

• Does not provide a complete or authoritative statement of the law;

• Does not constitute legal advice by Carisma Wills;

• Does not form part of any other advice, whether paid or free.