It’s important to follow all the right steps when you set up your Lasting Powers of Attorney (LPAs). If there’s any doubt about their validity the Office of the Public Guardian (OPG) will make a decision. This applies to LPAs for both your financial affairs and your health and welfare. 
Signing an LPA certificate is an important role.

What can make your LPA invalid? 

In a recent case, it was argued that someone’s LPAs did not meet the requirements of the Mental Capacity Act
 
Specifically, an LPA is only valid if it includes a document signed by a certificate provider. This confirms you, the donor (the person setting up the LPA), meet certain requirements. 
 
A donor must: 
understand what the LPA is and its contents 
understand the powers they’re giving to their attorneys 
not feel pressured by anyone else to make the LPA. 
 
In short, you must make an LPA because you want to and when you have the mental capacity to understand what it means. The certificate provider must also believe there aren’t any other reasons why you shouldn’t set up an LPA. 
 

Who is a certificate provider? 

Someone who is over 18 and has known you for at least two years can sign the certificate. You can ask a friend or colleague, but not an employee, your relations or your attorneys’ relations. Alternatively, someone with relevant skills like a medical professional, social worker or legal professional could sign the document. 
 

What can go wrong? 

In this case, someone made an LPA for her property and financial affairs, appointing all three of her children as her attorneys. She later made a new LPA for her property and financial affairs appointing her daughter as sole attorney. Later she also set up a health and welfare LPA, also with her daughter as her attorney. Her former mother-in-law and friend was the certificate provider for both LPAs. 
 
Some months later one of her sons wanted to create new LPAs with all the children as her attorneys. However, by this time the donor no longer had mental capacity to sign a new LPA. 
 
The OPG investigated the situation. It found that the certificate provider had confirmed her friend hadn’t been pressurised into making her LPAs. However, when a Court of Protection visitor spoke to the donor she said she didn’t know why her daughter was her sole attorney. 
 
The OPG said that confirming someone was ‘happy’ to set up an LPA didn’t meet all the requirements. The expectation is that the certificate provider will take steps to confirm someone meets all the conditions. 
 

The role of the certificate provider 

This case highlights the importance of a certificate provider and what’s expected. Confirming you meet all the conditions is essential to make sure an LPA is valid. 
 
If you’re asked to act as a certificate provider it’s important to make sure you understand the questions you should ask. Keeping notes of your conversations will help if the LPA is ever challenged. Write down the questions you asked, the responses you received and your opinions. These can later become part of the evidence an LPA is valid. 
 
If you would like to set up or change your LPAs just give me a call. 
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