What is a lasting power of attorney?
An LPA is a legal document that enables a person (known as the donor) to appoint one or more trusted people (known as attorneys) to manage their affairs and make decisions on their behalf in the event that they lose mental capacity.
There are two types of LPA:
- Property and financial affairs
- Health and welfare
What is the role of the certificate provider?
The certificate provider is an important safeguard in the process of the creation of an LPA.
The certificate provider is an impartial person who helps to protect the donor’s interests by checking that the donor understands the LPA and is making it of their own free will.
Who can act as a certificate provider?
The donor will choose who they wish to act as their certificate provider.
The certificate provider must be 18 years old or over and have mental capacity themselves.
They can be either:
- someone who has known the donor personally for at least two years, such as a friend or neighbour (but not a relative); or
- someone with relevant professional skills, such as the donor’s GP or solicitor.
The certificate provider must be more than an acquaintance. They have to know the donor well enough to have an honest conversation with them about the LPA and the power the donor is giving to their attorneys.
What preparatory steps should the certificate provider take?
The certificate provider must understand what an LPA is.
They must have read through the LPA the donor intends to create, paying attention to any conditions, restrictions or guidance the donor may have chosen to include.
They must also have read through section 8 of the prescribed form, which confirms the legal rights and responsibilities of the attorneys.
What questions should the certificate provider ask the donor?
The certificate provider should ask whichever questions they feel will allow them to determine that the donor understands the LPA and the scope of the authority they are granting under it.
Guidance provided by the Office of the Public Guardian (OPG) suggests that asking the following questions could assist the certificate provider in reaching their conclusion:
- What is your understanding of what an LPA is?
- What are your reasons for making an LPA?
- Why have you chosen me as your certificate provider?
- Who have you chosen to be your attorneys?
- Why those attorneys?
- What powers are you giving your attorneys?
- In what circumstances should the power be used by your attorneys?
- What types of decision would you like your attorneys to make, and what (if any) should they not make?
- If there are any restrictions in the LPA, what do you believe they will achieve?
- What is the difference between any restrictions and any guidance made in the LPA?
- Do your attorneys know the answers to any of these questions?
- Do you have any reason to think your attorneys are untrustworthy?
- Do you know when you can cancel the LPA?
- Are there any other reasons why the LPA should not be created?
Who should be present when the certificate provider meets the donor?
The certificate provider must:
- be able to have an honest conversation with the donor;
- be the kind of person who speaks out if anything is wrong; and
- be independent.
It would be ideal if the certificate provider could discuss the document with the donor without anyone else being present.
The attorneys should certainly not be present, and neither should anyone connected or related to them.
The purpose of the discussion is to allow the donor to speak freely to the certificate provider. It is important that the donor is able to raise any concerns they may have about their attorneys with the certificate provider, and they will not be able to do this if the attorneys, or their representatives, are present.
It is an important part of the role for the certificate provider to assess that the donor is acting without any fraud or undue influence. It is therefore essential that the certificate provider has the opportunity to discuss the document with them alone and without any outside influence.
What records should be kept?
OPG guidance recommends that a certificate provider retains a record of the questions they ask the donor and the answers the donor provides. This is in case someone challenges the donor’s capacity to make an LPA. In that instance, the certificate provider could be asked to explain to the Court how they formed their opinion.
It is advisable to keep these notes until at least the LPA has been registered with the OPG, or longer if the certificate provider thinks it is possible that someone may object to the LPA in future.