The certificate provider is an individual who signs the Lasting Power of Attorney (LPA) form to confirm that they have discussed it with the donor and that, in their opinion, at the date of creation of the LPA, the donor understood the purpose of the LPA and the scope of authority conferred under it, that no fraud or undue pressure is being used to induce the donor to create the LPA and that there is nothing else that would prevent the LPA from being created by the completion of the LPA instrument. There are very few cases, but TA v the Public Guardian is worth mentioning.
Background:
The case arose from a challenge by the Office of the Public Guardian (OPG) to the validity of LPA instruments for both Property and Financial Affairs and Health and Welfare, on the basis that they did not comply with paragraph 2(1)(e) Schedule 1 of the Mental Capacity Act (MCA) 2005.
The donor, KA, made an LPA for her property and financial affairs, appointing all of her three adult children as her attorneys. These were revoked by KA in 2021 and she appointed one of her children, TA, as attorney for both finance and health and welfare. The certificate provider for both LPAs was TA’s former mother-in-law and a close family friend. One of KA's sons then sought to revoke the LPAs but KA was assessed not to have the capacity to execute new ones.
The issue in the case was the extent of the duties owed by an individual who provides a certificate under paragraph 2(1)(e) of Schedule 1 to the MCA 2005. The application originally included non-compliance on two grounds. However, the only ground pursued at the first hearing was that the certificate provider (‘CP’) ‘failed to make the requisite checks of understanding with P prior to certification’.
Decision:
The appeal was dismissed. Lieven J agreed with the Judge's approach, noting that the ambit was much wider than simply capacity. The donor must understand the instrument and must not be subject to fraud or undue pressure.
The Court disagreed with the daughter’s argument that, as the certificate was signed, courts should assume that the certificate provider had given due consideration to all the relevant elements. The courts are entitled to check that the opinion was formed. The Court noted that “the mere provision of a certificate in the right form cannot be sufficient on its own”.
Implications:
This case made clear that the mere provision of a certificate in the right form is not sufficient on its own. For the certificate to be valid, there must be evidence of a valid opinion that is properly formed. It is important to ensure that detailed notes are kept.
A failure to have regard to the three elements could result in the LPA being invalid. It also highlights the role of a certificate provider and their duties to ensure that the donor fully understands the purpose of the LPA.
The role of the certificate provider is to safeguard and not merely confirm that the donor has capacity. This case is a good reminder that certificate providers must approach their role with caution to ensure the validity of the LPA. Being a certificate provider is not just witnessing an LPA being signed without giving thought to the content.