According to government guidance, an LPA certificate provider is an impartial person who confirms that the person completing the LPA understands what they are doing and that no one is forcing them to make an LPA. Their role is to confirm that the person completing the LPA understands the significance of the LPA, that they have not ben put under pressure to make it, that there is no fraud involved in making the LPA, and that there is no other reason for concern.
A certificate provider can be a friend of colleague who the donor has known for at least two years – or they can be a professional such as a health professional or lawyer who is in a position to just whether the person making the LPA knows what they are doing and hasn’t been forced into doing so.
The certificate provider and the MCA
The Mental Capacity Act (2005), explains the certificate provider’s role as follows:
‘[…] certificate by a person of a prescribed description that, in his opinion, at the time when the donor executes the instrument he understands the purpose of the instrument and the scope of the authority conferred, that no fraud or undue pressure is being used to induce him to create an LPA, and that there is nothing else that would prevent an LPA from being created by the instrument.’
Mental Capacity Act, Section 159
Based upon which, we can infer that the certificate provider must have an open, informed dialogue with the donor regarding the LPA, including what it is, who they are assigning, and all relevant aspects, including discussion of section 8. If satisfied, the certificate provider then signs the document after the donor, to verify that they are able to make this informed decision, and that they are not under undue influencer.
It is important to note here that the completion of an LPA document must be an informed decision. In other words, the Donor must have capacity to understand and retain the relevant information, applying this to decide on who they wish to act in the role of Attorney, if so required, as well as their rights around this.
Updates in case law
The role of certificate provider has recently come under scrutiny in an appeal case held before Mrs Justice Lieven in the Court of Protection, December 2023. The case raises the issue of ‘verification’ within the LPA application process. As Mrs Justice Lieven notes, this role is played by the certificate provider, and is not a role to be taken lightly.
According to the original case, to which Mrs Justice Lieven was considering:
18 (42). […]. The whole point of the certificate being a requirement of a valid LPA is that the certificate provider is standing at the gateway of enquiry as to whether there has been undue pressure or fraud. That is the very point that they are certifying, or certifying against to put it another way. What use is the provision of a certificate at all if there is no requirement for the opinion to be based upon anything reasonable?
Public Guardian vs FC and ML (2023), EWCOP 63
This is an extremely important observation as it reminds us of the importance of the role of certificate provider, and reaffirms the responsibilities of the role as a crucial part in the validation of the LPA application.
Importance of the certificate provider
Within her ruling, Mrs Justice Lieven expands on the role of certificate provider and its important role in safeguarding the Donor within the LPA process. From the original case to which Mrs Justice Lieven was considering, the following points stand out:
18 (37). […] there are some aspects of the relevant legislation that provide clear guidance to a certificate provider as to what is expected of them. […] The certificate provider is required to provide an opinion, not just to witness a signature, and it is an opinion that : i) the donor understands the purpose of the instrument and the scope of the authority conferred under it, ii) no fraud or undue pressure is being used to induce the donor to create a LPA, and iii) there is nothing else which would prevent a LPA from being created by the instrument.
18 (41). An opinion provider must, as a matter of basic common sense, never mind legal sense, satisfy themselves that their opinion is reasonably held, otherwise they are acting in a plainly unreasonable way […]’
The key here then is that the role of certificate provider cannot simply be a box ticking exercise. The certificate provider needs to provide an opinion on the three matters described above.
Thus, in considering the appeal submissions, Mrs Justice Lieven agrees with the original ruling and concludes:
29. […] on a pure black letter law approach, a valid certificate must be based on an opinion as to those three matters. If the evidence showed that the certificate provider did not have such an opinion because, for example, they had not spoken to the donor, then there would not be a valid opinion.
She thus argues:
30. […] The mere provision of a certificate in the right form cannot be sufficient on its own.
And most crucially:
32. […] The certificate is an important part of the procedure to ensure that a valid LPA has been entered into. The nature of the scheme is that validity turns not merely on the provision of certain documents, but that those documents themselves provide reassurance on a number of key matters. The whole purpose of the MCA is to make provision for the protection of those who have lost mental capacity, or who may do so, as we all may, in the future. The latter issue is dealt with, inter alia, through the making of Lasting Powers of Attorney. Those documents are of the utmost importance in the making of future decisions for people who subsequently lose capacity.
If in doubt, seek professional advice
These updates remind us that the role of certificate provider is therefore one of significant responsibility in the LPA process, as they require a knowledge of the Mental Capacity Act, and how it functions. If there is any reasonable belief of a lack of capacity to assign an LPA(s) then a full Mental Capacity Assessment should be completed.
For this reason, we strongly advise that a suitable health or legal professional be appointed to the role of certificate provider in cases where there may be any doubt over an individual’s capacity. They will be in a better position to reduce the risk of misuse, safeguarding the process through supportive, informed and skilled discussion to verify decision making, safeguarding rights and make appropriate recommendations of assessment or alternate options, if needed.
If you are in need of a Mental Capacity Assessment, or a trained professional to fulfil the role of LPA certificate provider, please contact us.