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Certificate providers and their role in LPAs

 

Prior to the introduction of Lasting Powers of Attorney (LPAs) an “enduring power of attorney” was used.  These were, unfortunately, open to abuse as they were valid as soon as signed and witnessed and no precautions were in place to protect the donor  This meant that unscrupulous people could cajole the vulnerable and elderly into signing them.  Once signed, the attorney  could empty the donor’s  accounts or otherwise deal with their property and finance illegally.  For those unfamiliar with these phrases, an attorney is the person chosen to make decisions on behalf of the donor and a donor is the person for whom an LPA has been set up for.

 This abuse was recognised and it was decided that a new power of attorney document would be used instead.  From this LPAs were born, of which there are two types; one for Property and Finance, the other for Health and Welfare.  With the introduction of these documents a safety check was put in place in the form of a certificate provider. 

 

The certificate providers role

 

The involvement of certificate providers in creating any form of lasting power of attorney is crucial and encompasses three main responsibilities:

  1.  Their initial duty is to verify your identity. They should speak to you on your own to ensure that the power of attorney is not being established by someone else for their gain, particularly in situations where the choices regarding attorneys, preferences, and instructions might differ if made directly by the individual concerned. Fraud has been a growing issue in recent years in relation to LPAs, particularly in residential conveyancing.  There have been cases where fraudulent LPAs have been (unknowingly) approved by the Office of the Public Guardian and have then been used to sell properties when the real owner had no knowledge of this.  More on this in another article to come.
  2. Their next responsibility is to ascertain that you fully grasp the implications of your choices, preferences, and instructions in establishing an LPA, ensuring these decisions are made voluntarily and not under duress or without the freedom to decide otherwise.
  3. Lastly, they must verify that you possess the cognitive ability to make informed decisions as documented in the LPA.

This verification of mental capacity is critical since disputes over LPAs frequently arise from questions about the individual's cognitive ability to make such decisions.

 

Eligibility for Certificate Providers

 

A certificate provider must be well-acquainted with you for a minimum of two years or possess professional qualifications, ensuring they are not involved in the LPA in any other capacity.

Eligible certificate providers include:

  • A personal acquaintance, such as a friend, neighbour, or (former) colleague, who has known the donor for at least two years.
  • A professional with relevant expertise, like the donor’s general practitioner, a healthcare worker, or a solicitor.

 

Restrictions on Eligibility for Certificate Providers

 

Certain individuals are prohibited from serving as certificate providers:

  • Any appointed attorney or replacement attorney in any LPA or enduring power of attorney made by the donor.
  • Family members of the donor or the attorney(s), including spouses, civil partners, in-laws, and step-relatives.
  • The donor’s or attorney’s unmarried partner, boyfriend, or girlfriend, regardless of their living situation.
  • Business partners or employees of the donor or the attorney.
  • Anyone involved in the management or ownership of a care home where the donor resides.

 

Choosing a certificate provider can often be a decision made during the LPA creation process due to the logistical challenges of coordinating the presence of witnesses and an eligible certificate provider simultaneously. It is acceptable to finalise the choice of a certificate provider when the document is being signed.

Should you wish to discuss the contents of this article fully or LPAs more generally, please speak to our specialist Senior Associate solicitor Steven Murgatroyd on 01484 504936 or email steven.murgatroyd@ramsdens.co.uk.

The above article is for illustrative purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any part of the information given.