Certificate Providers: Setting the Scene
When it comes to the granting of decision making powers under a Lasting Power of Attorney (LPA), be they Property & Financial powers or Health & Welfare powers; in each case it takes three persons to make an LPA. The Donor creating the decision making powers in the first place, the Certificate Provider certifying the Donor’s capacity in delegating those powers, and the Attorneys carrying out the specified decisions on behalf of and when authorised to do so by the Donor. A Certificate Provider under an LPA, acts as an important safeguard in ensuring that the Donor had the necessary mental capacity when they signed the LPA. Donors must select one Certificate Provider for every LPA they create. What follows, is an exposition of the appointment of a Certificate Provider under an LPA document; including who can be one, who cannot be one, what they must do, and how they are expected to go about doing it.
Categories: Who can be a Certificate Provider?
Certificate Providers must be at least 18 years of age, act independently in fulfilling their role, and not fall into one of the restricted categories (see ‘Constraints’ below). The Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007 state that a Certificate Provider can either be:
- Category A: Personal ‘knowledge-based’ Certificate Provider
Anyone who has known the Donor for at least two years before the date when the Certificate Provider signed and confirmed the Donor’s capacity. This can be a friend, neighbour, colleague, or former colleague of the Donor. It must be someone who is more than an acquaintance, who can have an honest conversation with the Donor about what it means to create an LPA. This can be one of the persons who Witnessed the LPA.
- Category B: Professional ‘skills-based’ Certificate Provider
Anyone who due to their professional training, reasonably believes they can make judgments as to the capacity or lack thereof of the Donor making the LPA. This can be a Medical professional (Doctor, GP), Legal professional, registered Social Worker, or an Independent Mental Capacity Advocate (IMCA). This can be the Estate Planner who helped complete and register the LPA on behalf of the Donor, as long as they reasonably believe to be able to judge the Donor’s capacity.
Constraints: Who cannot be a Certificate Provider?
The following persons are excluded from acting as Certificate Providers for any LPA:
- an Attorney or replacement Attorney for that LPA.
- an Attorney or replacement Attorney in any other LPA or Enduring Power of Attorney the Donor made.
- a family member of the Donor or of their Attorneys’ families including wives, husbands, civil partners, in-laws and step-relatives.
- an unmarried partner, boyfriend or girlfriend of the Donor or of any of their Attorneys.
- a business partner of the Donor or their Attorneys’ business partners.
- an employee of the Donor or their Attorneys’ employees.
- an owner, manager, director or employee of a care home where the Donor lives or a family member of a person associated with the care home.
- anyone running or working for a trust corporation appointed as an Attorney in a Financial LPA.
Capacity: How should a Certificate Provider assess capacity?
In order to assess the capacity of a Donor making an LPA, a Certificate Provider must be aware of the relevant 2-stage test for mental capacity under Sections 2(1) and 3(1)(a)-(d) of the Mental Capacity Act 2005 (the Act). The first ‘Diagnostic’ test is concerned with whether there is an impairment or disturbance in the functioning of the Donor’s mind or brain. The second ‘Functional’ test is concerned with whether the impairment or disturbance is sufficient that the Donor lacks the capacity to make a particular decision. By way of guidance with the ‘Functional’ test, a Certificate Provider can assume that a Donor does not have capacity if they cannot: understand the information relevant to a decision, retain that information, weigh the information as part of a decision making process, or communicate that decision using any means. The Certificate Provider must also be aware of the Five Principles of capacity under Section 1(2)-(6) of that Act, which are as follows: (A) A Donor must be assumed to have capacity unless it is established that they lack capacity. (B) A Donor is not to be treated as unable to make a decision unless all practicable steps to help them do so have been taken without success. (C) A Donor is not to be treated as unable to make a decision merely because they make an unwise decision. (D) Any act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in the Donor’s best interests. (E) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the Donor’s rights and freedom of action.
Certification: What must a Certificate Provider do?
Certificate Providers must sign and date Section 10 of the Donor’s LPA, and in doing so confirm that (1) the Donor understands the purpose and nature of the LPA created, (2) the Donor is under no fraud, pressure or undue influence in making the LPA, and (3) there is nothing else which would prevent the LPA from being created and registered. For an LPA to be successfully registered with the Office of The Public Guardian (OPG), the Certificate Provider must sign and date Section 10 on the same day or after the Donor has signed and dated Section 9 of the LPA.
Epilogue: Certificate Providers
For more information on Certificate Providers, please contact the Society of Will Writers on 01522 687 888, or read the OPG’s LP12 guidance ‘Make and Register your Lasting Power of Attorney’ Part A10 – Signature: Certificate Provider.