Crucial Role of Certificate Providers in Making Lasting Powers of Attorney

A recent case, TA v The Public Guardian, 2023 EWCOP 63, reminds us that the role of the Certificate Provider in making Lasting Powers of Attorney is an important one and not something to be undertaken lightly.

In this case, the Certificate Provider simply asked “are you happy with the LPA”?

The judgement clearly says that the Certificate Provider must have investigated enough to be confident to form an opinion about the 3 matters upon which they are required to, as set out in paragraph 2(1)(e) of Schedule 1 to the Mental Capacity Act 2005, namely:

• the donor understands the purpose of the instrument and the scope of the authority conferred under it,
• no fraud or undue pressure is being used to induce the donor to create a lasting power of attorney, and
• there is nothing else which would prevent a lasting power of attorney from being created by the instrument

Where there is insufficient evidence of the Certificate Provider’s analysis and conclusions on each of the 3 matters set out above, the certificate cannot be said to have been validly provided if challenged in Court.

So, this acts as a reminder to choose your Certificate Provider carefully and how using suitably qualified professionals, preferably those that are members of the Society of Trust and Estate Practitioners and who are familiar with the tests and obligations, is invaluable.  This is especially important if there are difficult family relationships, where a dispute might be more likely or foreseeable.

How can Ellis Jones help?

If you need any help or advice about the role of a Certificate Provider or the preparation of Lasting Powers of Attorney themselves, please contact our specialist Wills, Trusts & Probate team on 01202 525333 or email wills@ellisjones.co.uk