A lasting power of attorney (LPA) is a vital legal document that enables individuals (the donors) to appoint trusted individuals (the attorneys) to make decisions on their behalf when necessary. Crucial to the LPA process is the involvement of an independent figure known as the certificate provider. Their primary role is to validate the LPA and ensure the donor is making decisions voluntarily, without pressure and with full understanding.

Certificate providers can be chosen from two categories: someone with relevant professional skills, like a solicitor, or someone who has known the donor personally for at least two years. In both scenarios, the main objective is to ensure the donor’s best interests are protected. The individual acting as the certificate provider must be over 18 and should not be related to the donor or the appointed attorney(s).

When preparing the LPA, the certificate provider must take the important steps to confirm the donor’s understanding and intentions. Their responsibilities include asking important questions, witnessing signatures, and verifying that the LPA document is completed correctly. By doing so, they play a significant role in safeguarding the donor’s interests and upholding the integrity of the LPA process.

certificate provider

Understanding LPA Certificate Providers

Role and Responsibilities

LPA certificate providers play a pivotal role in the creation of a Lasting Power of Attorney (LPA). They hold a significant responsibility in safeguarding the donor’s interests. Primarily, a certificate provider ensures the donor fully understands the LPA, its implications, and confirms that the donor is making the LPA voluntarily, without any coercion.

Furthermore, a certificate provider’s duties involve signing the LPA document, which, without their signature, cannot be registered or considered legally valid by the Court of Protection.

Qualifications Required

Qualified certificate providers must meet the following criteria:

  1. Be above the age of 18
  2. Be independent of the LPA application
  3. Not be related to the donor or attorneys
  4. Possess a proper understanding of their role
  5. Have known the donor personally for at least two years or possess professional knowledge and skills in their relevant field, allowing them to assess the donor’s mental capacity.

It is important to note that potential certificate providers should not be financially dependent on the donor, nor should they be in a business relationship with the donor or any of the attorneys involved.

Types of Certificate Providers

There are two main types of certificate providers:

  1. Personal acquaintance certificate providers: These are individuals who have known the donor personally for a minimum of two years. They could be friends, neighbours, or colleagues. However, they must not be related to or involved in any financial transactions with the donor.
  2. Professional certificate providers: These are individuals with specific professional qualifications that enable them to assess mental capacity and the presence of undue influence. Examples of professional certificate providers include solicitors, doctors, social workers, and occupational therapists.
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The LPA Certification Process

Steps for Providing a Certificate

  1. Choose a suitable certificate provider: The certificate provider should be an impartial individual, aged 18 or above, who isn’t related to the donor or attorney(s) and preferably someone who has known the donor for a significant amount of time.
  2. Discuss the LPA: Have a conversation with the donor to ensure they understand the implications, purpose, and details of the LPA.
  3. Verify donor capacity: Assess the donor’s mental capacity to ensure they’re capable of creating an LPA.
  4. Complete the certificate: Fill out the certificate section in the LPA form, including the provider’s details and confirmation of donor’s understanding and capacity.
  5. Sign and date the certificate: The certificate provider must sign and date the certificate section of the form.

Verifying Donor Capacity

It’s crucial for the certificate provider to confirm the donor’s mental capacity to ensure they’re capable of creating an LPA. During this process, the provider should:

  • Assess the donor’s overall understanding of the LPA and its implications
  • Check for any signs of duress or undue influence on the donor
  • Ensure that the donor is comfortable with their chosen attorney(s)

If there are any concerns about the donor’s mental capacity or potential outside influences, the certificate provider should seek professional advice or decline to act as a provider.

Filling Out the Certificate

In the LPA form, the certificate provider must complete the following sections:

  • Provider’s details: Name, address, and other contact information
  • Relationship to the donor: State how long they’ve known the donor and in what capacity
  • Declaration: Confirm that the donor understands the LPA, has the mental capacity to create it, and is doing so without undue influence or duress
  • Signature and date: Sign and date the certificate to validate it

Following these steps ensures the Lasting Power of Attorney (LPA) is created legitimately and transparently, safeguarding the interests of the donor.

meeting lpa

Legal Framework and Compliance

Relevant Legislation

The Lasting Power of Attorney (LPA) in England and Wales is regulated by the Mental Capacity Act 2005. This legislation outlines the requirements and responsibilities surrounding LPAs, including the role of the certificate provider. Certificate providers act as impartial individuals who help protect the donor’s interests by ensuring they understand the LPA and are making it of their own free will.

Compliance Issues

Certificate providers must adhere to the following criteria:

  • Be over 18 years of age
  • Not be related to the donor or attorney(s) by blood, marriage, or civil partnership
  • Not be in a business relationship with the donor or attorney(s)
  • Have known the donor for at least two years or be a professional with relevant expertise (e.g., a solicitor or GP)

A certificate provider is required to make a statement within the LPA document confirming the donor’s understanding, willingness, and that there is no undue influence or fraud involved.

It is important to remember that solicitors can act as certificate providers but must ensure they do not fall into any of the excluded categories outlined in the Mental Capacity Act 2005.

Challenging an LPA

If someone believes that the LPA was not set up correctly or the donor did not possess the mental capacity at the time of signing, they may challenge the LPA. To do so, they need to apply to the Office of the Public Guardian (OPG) with their grounds for objection. The OPG will then determine if the LPA should be revoked or amended.

Examples of objections can include:

  • The certificate provider not meeting the eligibility criteria
  • The donor lacking mental capacity when making the LPA
  • Suspicions of fraud or undue influence on the donor
mental capacity

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