Your Lasting Power of Attorney Certificate Provider

Picking the right people to help when you can’t help yourself is one of the most important decisions you may need to make. People often focus on selecting the right attorney, and rightly so; however, there is another crucial role that is pivotal to the validity of your Lasting Power of Attorney (LPA), your Certificate Provider.

What is a Certificate Provider?

The Certificate Provider is an impartial person who helps protect your interests by signing the LPA to confirm that they had discussed the LPA with you and certify that:

• You understand the purpose of the LPA and the power you are giving your Attorney(s);
• You are acting under your own free will and are not being pressured or coerced in making the LPA; and
• There is no fraud or any other reason you should not be creating the LPA.

Without an appropriate Certificate Provider, the LPA cannot be registered or used.

Who can be a Certificate Provider

There are two classes of people who you can choose to act as you Certificate Provider.

1. Someone you have known personally for at least two years; or
2. Someone with the relevant skill and expertise such as your Solicitor or GP.

Your Certificate Provider should be someone you can trust, someone competent and importantly, someone who may be around if there is a problem when you lose capacity.

Who can’t be your Certificate Provider

Knowing who can’t be your Certificate Provider is equally as important. Your Certificate Provider must not be:

• One of the people you have appointed as your Attorney or replacement attorney;
• A member of your family or one of your Attorney’s family;
• Your unmarried partner, boyfriend or girlfriend or that of one of your Attorney;
• Your or one of your Attorney’s business partner or employee; or
• An owner, manager or employee of a care home you live in.

If any of the above act as your Certificate Provider, your LPA will be invalid.

What can go wrong

If your LPA is challenged in the future, the Court may ask your Certificate Provider to confirm and demonstrate that they met the eligibility requirements, they understood their role and correctly performed it.

It is therefore imperative that you select an appropriate person, who will be able to provide the necessary responses when asked to; this is crucial in maintaining or demonstrating the validity of your LPA.

To ensure the Certificate Provider you have selected is able to provide these responses, consideration should be given to their age; will they still be here to answer these questions and have the capacity to do so?

Failure to ensure they speak to you alone to ensure there is no one pressuring or coercing you, and failure to ensure the LPA is signed in the correct order can lead to the LPA being invalid.

Why you should ask a Solicitor to prepare your LPA

While it is true that you can prepare the LPA yourself and choose someone you know to be your Certificate Provider, it is important to remember that this is a powerful legal document. Entrusting a Solicitor to both prepare the document as well as act as your Certificate Provider is generally the golden standard for your protection.

1. Expert capacity assessment

A common challenge to the validity of LPAs is whether someone had the necessary mental capacity when making the LPA. Solicitors are trained to identify the nuances of mental capacity and follow the specific legal tests set out in the Mental Capacity Act 2005; this ensures our LPA is robustly protected against such legal challenges in the future.

2. Spotting pressure or coercion

Often, family dynamics can be complicated. A Solicitor is an impartial and objective third party who can identify subtle signs of pressure or predacious behaviour that a family friend may overlook or perhaps feel unable to address.

3. Knowledge and profession

Having a Solicitor prepare your LPA ensures that you will have someone to guide you through the various options, risks and pitfalls such that you are able to make an informed decision in respect of each of the various aspects of the LPA. Additionally, a Solicitor will ensure that any instructions or preferences included in your LPA are correctly constructed to avoid rejection by the Office of Public Guardian or other third parties.

4. Precision and peace of mind

Choosing a Solicitor to be your Certificate Provider can eliminate the risk of clerical errors and reduces the risk of successful challenge of your LPA.

Solicitors are required to keep detailed contemporaneous file notes of meetings with you; they will therefore have evidence to support that the correct procedures were followed when you made your LPA.

George Green Solicitors

We believe that preparing LPAs and acting as a Certificate Provider is more than just filling in and signing a form. The protection of your interests is paramount, and the validity of your LPA can mean the difference between having a properly constructed legal instrument where you have chosen the people you trust to make decisions on your behalf and having nothing at all in place.

If you wish to discuss making a Lasting Power of Attorney, our professional and experienced Private Client team are here to help. Call today on 01384 410410 or use our online enquiry form.