We have previously blogged about the significant benefits of putting in place Lasting Powers of Attorney.

If you use a professional to prepare that document, invariably they will act as your Certificate Provider (unless they are also a proposed attorney).  However, if you prepare the document yourself, you will need someone to act in this position, which can cause confusion. 

The purpose of this blog is to explain exactly what a Certificate Provider is.

It was widely felt that Enduring Powers of Attorney (the precursor to Lasting Powers of Attorney) were rich targets for fraud, ostensibly as there was no involvement from objective third parties when preparing those documents.  Therefore, when Lasting Powers of Attorney first came into effect, not only did you need a Certificate Provider, but notice also needed to be served on one or more friends and family members before the documents could be used. The Office of the Public Guardian quietly dropped the requirement (and therefore the protection) for serving notice several years ago.  Fortunately, the requirement to have a Certificate Provider remains.

A Certificate Provider is either someone who has known you personally for at least 2 years, or alternatively is a professional with relevant expertise.  The purpose of their role is to ensure that at the time you sign your Lasting Power of Attorney, you understand what you are doing, what the effect of that document is, and that no one is coercing you into granting the attorneyship power.  The role therefore ideally suits professionals who are trained to spot signs of incapacity and undue influence.  Likewise, it would also suit a good friend who understands you well and can therefore notice if all is not in order.

When a Certificate Provider signs your Lasting Power of Attorney, they are effectively certifying that you understand what you are doing and are not being coerced.  That then ends their role, however it does not necessarily end their liability.

Anyone who acts as a Certificate Provider without fully understanding the role they are performing, opens themselves up to potential liability.   A recent case in the Solicitors Disciplinary Tribunal demonstrates this neatly.  In that case a solicitor had acted as Certificate Provider as “a favour” for an elderly client.  He had not fully appreciated the nature of the role and had therefore not taken steps to ensure that the client fully understood the document and was not being pressured into preparing them in anyway.  As it happened, there was undue influence from a family member to such an extent that the West Midlands Police became involved. 

You can find further details about this case here.

In short though, that solicitor was fined £6,000 for failing to adequately discuss the matter with his client.  Of greater concern though will be for the client themselves who could have been spared a significant amount of distress had the certificate provider performed their role correctly. I can also easily foresee an unwitting Certificate Provider (professional and otherwise), who fails to carry out their role correctly, potentially suffering criminal sanctions as an accessory to fraud against a vulnerable person.

If you are therefore asked to perform this role for a friend, I would suggest reading carefully the entire Lasting Power of Attorney document, and all additional help and guidance that is referred to within it, before signing the form itself. Page 11 (the signature sheet for Certificate Providers) helpfully spells out exactly what a Certificate Provider should be doing. At the very least, a Certificate Provider must carefully read that page before signing.  

If you have any queries about preparing Lasting Powers of Attorney, or acting as a Certificate Provider, please do not hesitate to contact any member of above management and taxation team.