The role of the certificate provider
What is the role of the certificate provider? The certificate provider is crucial in establishing an LPA. This impartial individual safeguards the donor's interests by ensuring that the Donor (Client) had the mental capacity when they signed the LPA, that they made the LPA of their own free will without duress, and that they understood what it means to make the LPA and the power it grants to their chosen attorneys.
The certificate provider signs Section 10 of the Donor's LPA to confirm that, in their opinion, at the time the donor executes the LPA:
- the donor understands what an LPA is and understands its content.
- the donor understands the powers they will give their attorneys in their LPA.
- the donor is not being pressured in any way or under duress by someone else to make the LPA, and they are doing this of their own free Will; and
- nothing else would prevent the LPA from being created.
For an LPA to be successfully registered, the Donor must sign Section 10 on the same day or after the donor has signed and dated Section 9. The donor must sign before any Attorney and their Witness can sign.
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 or older and have mental capacity.
Category A: Personal 'knowledge-based' certificate provider.
Anyone who has known the Donor well, for at least two years. This can be a friend, neighbour, colleague, or former colleague of the Donor. It must be someone who is more than an acquaintance and who can have an honest conversation with the donor about what it means to create an LPA. This can be one of the people who witnessed the LPA.
Category B: Professional 'Skills-based' Certificate provider.
Anyone who has the appropriate professional training and reasonably believes they can assess the capacity of the donor can fulfil this role. This includes medical professionals (such as general practitioners), legal professionals, registered social workers, or independent mental capacity advocates (IMCAs). Additionally, estate planners, like those at Fern Wills & LPAs, who have trained in the Mental Capacity Act 2005 and have over a decade of ongoing experience, and training making such assessments. Training Qualifications
Who can not be a Certificate Provider?
The following persons are excluded from acting as Certificate Providers:
- an Attorney or replacement Attorney for that LPA.
- an Attorney or replacement Attorney in any other LPA or Enduring LPA the Donor made.
- a family member of the Donor or of their Attorneys' families including spouses, in-laws and step-relatives.
- an unmarried partner, boyfriend, girlfriend of the Donor or Attorneys.
- a business partner of the Donor or attorneys.
- an employee of the Donor or Attorneys.
- anyone or their family associated with a care home, where the Donor lives.
- anyone running or working for a trust corporation appointed as an Attorney in a Financial LPA.
What preparatory steps should the certificate provider take?
The certificate provider must understand an LPA. They must have read through the LPA the donor intends to create, paying attention to any conditions, restrictions, or guidance the donor may have included. They must also have read section 8 of the prescribed form, which confirms the attorneys' legal rights and responsibilities.
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. 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 your attorneys use the power?
What types of decisions 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 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 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. The donor must be 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. Assessing that the donor is acting without fraud or undue influence is integral to the certificate provider's role. Therefore, the certificate provider must be able to discuss the document with the donor 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. Fern Wills & LPA offers a welcome letter and a conversation for Certificate providers to aid them with their duties.
