- Article Updated: 04/07/2024
A guide to Understanding the role of a certificate provider.
Considering TA v The Public Office (2023 EWCOP)
What is the role of a certificate provider?
For a Lasting Power of Attorney to be valid it must include a ‘certificate’ given by a certificate provider. The role of the certificate provider is to exercise their judgement to verify that the donor of the LPA understands the purpose and scope of the LPA, that there is no undue pressure or fraud being placed on them to make it and that there is nothing else that would prevent it from being made.1
The requirements of a certificate provider must be fulfilled to ensure that the LPA is valid.
Certificate Provider Requirements:
The certificate provider must have either:
– Known the donor personally for at least 2 years before the certificate is signed.
Or
– Be someone who have the relevant professional skills and expertise such as a medical professional or a solicitor.
Who cannot be a certificate provider?
An Attorney of the current or any previous Lasting Power of Attorney or Enduring Power of Attorney cannot act as the certificate provider.
Recent case of TA v The Public Guardian (2023 EWCOP):
TA v The Public Guardian ruled that the role of the certificate provider was not merely to confirm the capacity of the donor, but to ensure that the donor fully understands the purpose of the LPA. The judge held that the certificate provider did not fulfil the duties required of them under the Mental Capacity Act 2005 and did not go far enough to protect the donors’ interests. The LPA was ruled invalid.
This case reaffirms the duties of a certificate provider in safeguarding the donors’ interests in accordance with paragraph 2 of the Mental Capacity Act (MCA) 2005.
Impacts of this case:
This case confirms the importance of the role the certificate provider and that they must actually exercise their judgement not just rubber-stamp the LPA.
This case highlights the risk of an LPA being deemed invalid where the certificate provider does not adequately fulfil their duties.
1 The statutory duties of a certificate provider can be found under paragraph 2(1)(e), schedule 1 of the Mental Capacity Act 2005.
We're here to guide you:
At Nantes Solicitors, your experienced solicitor can act as your Certificate Provider and will perform the role as part of the LPA service we offer. Their expert judgement will safeguard the donors’ interests and avoid any challenges to the LPA on this ground.
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