When setting up a Lasting Power of Attorney (LPA), a crucial part of the process is selecting a certificate provider. This individual serves an important role by confirming that the donor understands what they are doing. In addition, that they are not being pressured or unduly influenced to create the LPA. In this article, we look at what is a certificate provider in an LPA, who can be one and what is their purpose?
Why is a Certificate Provider Needed?
The main reason for having a certificate provider is to protect the donor from creating an LPA under inappropriate circumstances. The certificate provider is responsible for confirming two key things:
- Mental Capacity: The donor must understand what an LPA is and the powers they are giving to their attorney. They should also understand the consequences of making such a decision. Mental capacity is a cornerstone of creating a legally valid LPA. It is the job of the certificate provider to ensure that the donor understands the nature and effects of the document.
- No Undue Influence: The certificate provider must ensure that the donor is creating the LPA of their own free will. There should be no pressure or coercion from family members, friends, or attorneys influencing the donor’s decision. This ensures the LPA reflects the donor’s genuine wishes.
Without this safeguard, there would be a significant risk of vulnerable individuals creating LPAs under duress. Also, without fully understanding the ramifications. This could potentially lead to financial abuse or other harmful consequences.
Who Can Act as a Certificate Provider?
The certificate provider must be a person who is independent of the donor and attorneys. They must also have the necessary skills to assess the donor’s mental capacity and decision-making freedom. There are two main categories of individuals who can act as certificate providers:
- A Knowledgeable Person (Someone Who Knows the Donor Personally) This could be a friend, neighbour or colleague who has known the donor personally for at least two years. The key point here is that the certificate provider must know the donor well enough. THis is in order to confirm their mental capacity and independence in making the decision.
- A Professional Person (Someone with Relevant Expertise) Professionals such as doctors, lawyers, or social workers can also act as certificate providers. They will have the necessary skills to assess a person’s mental capacity. Even if they do not know the donor personally, they are trusted because of their professional background and expertise.
It’s important to note that certain people cannot act as a certificate provider. This includes the donor’s family members, an attorney under the LPA or anyone employed by the donor or the attorneys. This is to ensure that the certificate provider remains impartial. They should have no vested interest in the creation of the LPA.
What Does a Certificate Provider Do?
The certificate provider has a formal responsibility to complete Section 10 of the LPA. This certificate consists of a series of questions designed to confirm the donor’s understanding and freedom of choice. These questions include:
- Does the donor fully understand the nature and purpose of the LPA?
- Does the donor understand who they are appointing as their attorney(s) and what authority they are giving them?
- Is the donor free from any undue pressure or influence in making this decision?
- Is there any reason why the LPA should not be made?
The certificate provider must meet with the donor to ask these questions and assess their responses. This process involves speaking directly with the donor about their decision. Also, explaining the nature of the LPA and ensuring that they are clear on its effects. The certificate provider must be satisfied that the donor can answer these questions without confusion or hesitation. This indicates that they understand what they are doing and are making the decision independently.
Once the certificate provider has to be confident that the donor has the necessary capacity. Also, that they are not being unduly influenced. Then they can sign and date Section 10. This formally attests to the donor’s competence.
Assessing Mental Capacity
Mental capacity is a crucial concept within the context of LPAs. It refers to the donor’s ability to make decisions for themselves at the time the LPA is created. The Mental Capacity Act outlines the criteria for making a mental capacity assessment to make a particular decision.
A person is considered to have mental capacity if they can:
- Understand the information relevant to the decision.
- Retain that information long enough to make a decision.
- Use or weigh that information as part of the process of making the decision.
- Communicate their decision by any means, whether verbal or non-verbal.
For the certificate provider, this means ensuring that the donor meets these criteria when creating the LPA. They must have a good understanding of the donor’s mental state and be confident that the donor is acting of their own accord.
What Happens if a Certificate Provider is Not Used?
If an LPA is created without the involvement of a certificate provider, it will be rejected by the Office of the Public Guardian (OPG), which oversees the registration of LPAs. This is because the certificate provider’s role is considered a legal requirement for the validity of the LPA.
If someone believes that an LPA was created under undue influence or without proper mental capacity, they can challenge the LPA in court. The presence of a certificate provider who has conducted a thorough assessment serves as strong evidence that the LPA was made properly. Thus reducing the risk of legal disputes later.
Common Misunderstandings About Certificate Providers
There are several common misconceptions about the role of a certificate provider:
- The Role is Just a Formality: Some people believe that the certificate provider’s role is purely administrative but, it is a significant responsibility. The certificate provider is a safeguard to protect the donor’s best interests.
- Any Friend Can Be a Certificate Provider: While friends can act as certificate providers, they must have known the donor for at least two years. They must also be confident that the donor is not being influenced by anyone.
- Attorneys Can Be Certificate Providers: Attorneys under the LPA cannot act as certificate providers because they have a vested interest in the outcome of the LPA. The certificate provider must be independent and impartial.
Conclusion
The certificate provider plays a critical role in ensuring that a Lasting Power of Attorney is created voluntarily and with full understanding. Acting as a safeguard for vulnerable individuals, they ensure that the donor has mental capacity and is free from undue influence. By carefully selecting a knowledgeable or professional person as a certificate provider, the donor can have confidence that their wishes will be respected and legally upheld if they lose the ability to make decisions for themselves.
