In a previous blog I explained what a ‘Certificate Provider’ is for the purpose of completing a Lasting Power of Attorney.  I also noted that Certificate Providers can face personal liability if they do not discharge their duties correctly when signing the Power of Attorney document.

In this blog, I will look at a recent Court case which has clarified further the process for providing the valid certificate.  This will be particularly important for laypersons who act as a certificate provider (i.e. friends of the donor who have known them for at least two years).

The case in question was  TA -v- The Public Guardian (2023  EWCOP63).  This case saw the validity of the Power of Attorney being questioned under Section 22 of the Mental Capacity Act 2005 on the basis that the certificate was invalid.  In this particular case, the certificate provider had spoken with the Donor one month prior to her execution of the Powers of Attorney, over the telephone, and with other people in the same room as the Donor.  Whilst they had asked the Donor whether they were happy about the terms of the Powers of Attorney, they had failed to consider the previous Power of Attorney which had named other children, nor to probe more deeply as to why a previous Power of Attorney was to be revoked in favour of a new one (in order to show that the donor truly understood what were doing and had good reasons for doing so).  No doubt this is  a fairly typical conversation between laypersons and Donors when they act as certificate providers.

The Court in this case made it clear, that a certificate provider must show that they have considered the conditions set out in  Schedule 1 of the Mental Capacity Act 2005 .  These conditions are as follows:

1. The Donor must understand the purpose of the Lasting Power of Attorney and the scope of the authority conferred under it

2. No fraud or undue pressure is being used to induce the Donor to create the Power of Attorney

3. There is nothing else which would prevent the Power of Attorney from being created by the completion of the document

Those conditions are actually set out on page 11 of the Lasting Power of Attorney forms themsevles, being the page to be signed by the certificate provider.   Our practical advice therefore is that a certificate provider should read the full wording on that page in order to have an informed and comprehensive discussion with a Donor. 

A certificate provider must understand the scope of the authority conferred by a Power of Attorney and to consider the reasons for the Donor’s choice of Attorneys (and indeed their reasons not to include other persons who might be  entirely appropriate Attorneys).  This is particularly pertinent when one of multiple children are named as Attorneys as this is a situation that can give rise to disharmony.  There may well be a very good reason not to name all children (notably because they do not get along) and this good reason will no doubt come out as part of that conversation.

In any event, the Court made it clear that if a certificate provider was not present in person, without the presence of other people, when acting as a certificate provider, then any later witness stamteent from them would have limited weight should the validity of their certificate be questioned. Most importantly, the Court made it clear that simply because the certificate was signed correctly does not give rise to the assumption that the role was discharged correctly. 

The above highlights that acting as a certificate provider is more than simply a ‘tick box’ exercise and must be discharged diligently and with care.

When we prepare Powers of Attorney for clients, we typically act as certificate providers.  Occasionally, notably when we act as Attorneys ourselves, we cannot undertake this role and must ask another professional or third party to act.

Under these circumstances, we always give full instructions to that certificate provider so that they can discharge their role effectively.

If you do have any queries about preparing a Lasting Power of Attorney or acting as a certificate provider, please do not hesitate to contact the writer either by email or on 01494 893533.