What are the duties of an LPA certificate provider?

The TA vs the Public Guardian case has shone a light on the expectations placed on certificate providers and underscores the significance of their role in safeguarding the interests of donors.

In this article, Sharon Crosby, head of Lodders’ Care and Capacity team, explains what the role of a certificate provider involves, provides an overview of the TA vs the Public Guardian case, and highlights the key takeaways for certificate providers. 

What is the role of an LPA certificate provider?

A certificate provider is the person who signs a Lasting Power of Attorney (LPA) after the donor. Under the Mental Capacity Act 2005 (MCA), a certificate provider must evaluate whether the donor understands the LPA and the authority granted to their attorney(s), ensure the donor is free from undue influence or pressure, and be satisfied that there is no other reason why the LPA should not be completed.  

Having an independent person act as certificate provider is a key element to safeguarding the donor and preventing fraud or financial abuse. It is not just about confirming that the donor has capacity to make the LPA, but also that they fully understand the nature of the authority being provided to their attorneys and how they may act. Acting as certificate provider is not a passive role and they should speak to the donor alone before signing to be able to form an opinion regarding these issues. 

Who can be a certificate provider?

The certificate provider must be independent and there are strict requirements as to who can act in the role. For example, they must: 

• Not be related to the donor or attorneys – a “relation” has a wide definition in this context. 
• Not be an employee or employer of the donor or attorneys. 
• Be at least 18 years old. 
• Have known the donor well for at least two years or possess the relevant professional skills and experience to be able to determine if the criteria in the MCA have been met – for instance a GP, solicitor, registered social worker, or an independent mental capacity advocate. 

TA v the Public Guardian (2023)

Should a dispute arise over the LPA’s validity, a certificate provider may be called upon to testify regarding the donor’s capacity and understanding at the time of creating the LPA. As such, it is vital that they ensure the donor meets criteria specified under the MCA and are prepared to provide court testimony if necessary. 

This was confirmed by the England and Wales Court of Protection (EWCOP) earlier this year, in the case of TA v the Public Guardian [2023]. The party defending the LPA argued that providing the certificate alone sufficed and no further examination of the facts was necessary. 

Paragraph 2(1)(e) of Schedule 1 of the MCA states that, at the time of signing the LPA, the certificate provider needs to be satisfied that: 

• The donor understands the purpose and scope of authority conferred by the LPA  
• There is no fraud or undue pressure on the donor 
• There is nothing else that would prevent the LPA being created 

The defending party’s argument was therefore lost in the first instance, with the judge affirming that “what is required is the provision of an opinion, not merely the witnessing of a signature” and that the legislation “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.” 

It follows that the court must seek evidence that these requirements have been met, as without it, the certificate cannot be deemed valid. 

The case was appealed to the EWCOP, where Lieven J concurred with the initial judgment. She emphasised that if evidence showed the certificate provider lacked the required opinion, for example, by not speaking to the donor, then the certificate would not be valid. Merely having a certificate in the correct form is insufficient. Lieven J also highlighted that paragraph 2(e) serves as a safeguard against fraud, undue pressure, or the risk that the donor had not read the LPA and did not understand its scope.  

Key takeaways from the case

The decision in TA v the Public Guardian [2023] highlights the importance of the role of a certificate provider in preparing an LPA. It confirms that the person acting in the role needs to not only form an opinion as to the key elements of paragraph 2(1)(e), but also be able to evidence that opinion. 

Where a professional is acting in the role of a certificate provider, they should have clear attendance notes on file to show how this opinion has been formed. If a friend is acting as certificate provider, they are less likely to keep such records but should be encouraged to keep some form of evidence of any conversations with the donor, should the LPA be disputed in the future. 

The decision potentially opens the door for more LPAs to be challenged in the future and the evidence of compliance with the MCA by the certificate provider to come under greater scrutiny. There is a risk that more LPAs will be deemed to be invalid, even where there is no concern as to the capacity of the donor, if there is no evidence that the requirements of the MCA have been met. Donors should make sure that appropriate consideration is given to who should act in this role and take professional advice where possible.  

Online LPAs – what this means for certificate providers

The Powers of Attorney Act 2023 received Royal Assent on 18 September 2023 and paves the way for the introduction of digital LPAs. The process for creating digital LPAs has not yet been finalised but it is anticipated that the certificate provider will have to be present at the time that the donor “signs” the LPA and will also be required to provide identification.  

It is also expected that the format of the certificate may change, and additional support given to certificate providers. There will likely be guidance that sets out the relevant considerations and tests to be applied to ensure compliance with the MCA. No doubt this will be an important factor in striking the right balance between making LPAs more accessible to people whilst also ensuring safeguards are in place for those involved in creating LPAs. 

How we can help

At Lodders, we understand that creating an LPA and being an LPA certificate provider can be a confusing process and so we are on hand to offer support and professional advice to ensure that everyone involved understands their duties and responsibilities.  

If you require any further support with LPAs, please do not hesitate to get in touch with a member of our Care & Capacity team today.