Lasting Powers of Attorney (LPAs) are important estate planning documents and the recent case of TA v the Public Guardian [2023] EWCOP 63 (07 December 2023)[1] is a reminder of one of the key formalities to observe when making one.

Quick recap – what is an LPA?

An LPA is a legal document which lets a person  (“the donor”) appoint one or more people (“attorneys”) to help make decisions on their behalf.  There are two kinds of LPA; one for making decisions related to property and financial affairs and the other for making decisions related to health and welfare.

We strongly advise clients to consider putting in place at least the property and financial affairs variant. The alternative, if a person loses capacity and does not have an LPA in place, is that their family or friends may have to apply to the Court of Protection for a Deputyship order. This is much more time consuming and expensive and also brings with it various ongoing compliance obligations which do not apply to LPAs.

What is a “certificate provider”?

As well as the donor and the attorneys, an LPA also needs to be signed by a “certificate provider” in order to be valid. The certificate provider requirement acts as a safeguard against improper appointments of attorneys.

The certificate provider must be over 18, independent (in the sense that they cannot be an attorney and must not be related to, or have certain other connections with, either the donor or the attorneys) and either:

• have known the donor well for at least two years; or
• have relevant professional skills to make the necessary judgement (such as being a solicitor or doctor).

In signing the LPA they certify that:

• The donor understands the LPA and what it will do;
• The donor is not acting under undue pressure; and
• There is nothing else which means the LPA should not be effective.

In practice, this usually means the certificate provider is confirming that the donor has capacity to make the LPA, understands the effect of the LPA and isn’t being forced into making it by others.

Why is TA v the Public Guardian of interest?

This case concerned two LPAs which had appointed the donor’s daughter as her sole attorney (replacing a previous LPA in favour of all three of her children).

The LPAs were challenged by one of the donor’s sons and during an Office of the Public Guardian investigation it became clear that the donor thought all three of her children were her attorneys and would take decisions on her behalf together. 

This shone a spotlight on the certificate provider and whether they had taken suitable steps to satisfy themselves that the donor knew and understood what she was doing when she made the newer LPAs.  The certificate provider in question was a close friend of the donor’s but also the ex-mother in law of the daughter (the daughter and the certificate provider’s son had divorced but remained on good terms). 

In Court, the daughter argued that, because the necessary certificate had been signed, the Court should assume that the certificate provider had given due consideration to all the relevant matters and the Court should not take any further steps to examine whether the certificate provider had in fact formed a reasonable opinion on those points. 

The argument failed at first instance, with the judge (HHK McCabe) saying the legislation:

“plainly requires the certificate provider, in order to provide the certificate, to take some steps to satisfy themselves of the matters set out in section 2 (e), otherwise they cannot be considered validly to provide the opinion”.

The daughter appealed and asked the England and Wales Court of Protection to consider the point. That Court also rejected the argument, with Lieven J holding that: 

“the Court is entitled to check that the requisite opinion has actually been formed…… The mere provision of a certificate in the right form cannot be sufficient on its own”.

What does this mean in practice?

Frankly, it would have been surprising if the case had been decided any other way as it would have materially undermined the safeguard which the certificate provider requirement is meant to provide. Nevertheless, the judgment is a useful reminder that a certificate provider must not take their duties lightly and cannot simply sign an LPA without giving thought to its contents. 

Best practice is for the certificate provider (whether a professional or not) to:

• Meet with, or at least call, the donor at the time that the LPA is being made (without any of the attorneys present);
• Actively consider each of the matters which they are certifying (as referred to above and listed on the LPA itself);
• Ask appropriate questions of the donor, such as:
  • Do you understand what an LPA is?
  • Talk me through your rationale for who you are appointing as your attorney(s);
  • Tell me what you think this LPA covers (e.g. property and financial affairs/health and welfare)?
  • Please explain any preferences or instructions you have included in the LPA;
  • Who actually prepared the LPA? If you did, has anyone else been directing you or helping you complete it?
  • Do you have any concerns about the document itself or the process of its preparation?
  • Is there anything else you think I should know? 
• Make a written record of this conversation, noting in particular (a) the donor’s answers and (b) the certificate provider’s conclusions based on those answers.

How we can help

We have experience helping clients prepare all forms of lasting power of attorney, as well as advising on how to use these and older variants (such as “enduring powers of attorney”).

We can also help with cross-border issues and deputyship applications.
 

[1]https://www.bailii.org/ew/cases/EWCOP/2023/63.html