A lasting power of attorney (LPA) is a legal document that lets a person (the 'donor') appoint one or more people (known as 'attorneys') to help them make decisions or to make decisions on their behalf. This gives the donor more control over what happens if they have an accident or an illness and cannot make their own decisions. The donor must be 18 or over and have mental capacity (the ability to make their own decisions) when they make the LPA.
There are two types of LPA:
- health and welfare
- property and financial affairs.
The donor can choose to make one type or both. The LPA must be registered with the Office for the Public Guardian before it can be used.
An important part of the protection against fraud is the idea that someone who knows the donor counter signs it to confirm that the donor is making the document by choice and that they understand what they are doing. This counter-signatory is called a 'certificate provider.'
This is an important role and requires the certificate provider to sign the document to confirm that they have discussed the power of attorney with the person making it, that the person understands what they are doing and that no one is forcing them to do it. The certificate provider must have known the donor for at least two years (for example a friend, neighbour or colleague) or must be someone with relevant professional skills, such as the donor's GP, a healthcare professional or a solicitor. The certificate provider cannot be one of the attorneys.
The Court of Protection has recently heard a case regarding the duties of a certificate provider. The case involved a disputed power of attorney. The donor had originally created an LPA appointing all three of her children as her attorneys but she later revoked it and made another LPA appointing just one of her daughters and, as is so often the case, there was a family dispute and in this case it was about the duties of the certificate provider.
The court found that:
'The certificate provider is required to provide an opinion, not just to witness a signature, and it is an opinion that:
- the donor understands the purpose of the instrument and the scope of the authority conferred under it,
- no fraud or undue pressure is being used to induce the donor to create an LPA, and
- there is nothing else which would prevent an LPA from being created by the instrument.'
The key is that the certificate provider actually forms an opinion; their function is not merely to witness a signature. The Court found that the opinion had been formed in the case in question.
The case is also a salutary reminder of the difficult that can come about if families do 'home-made' powers of attorney and subsequently fall out. It is not a requirement to take legal advice to make a power of attorney – but it might save difficulties in the long run if professional advice is taken.
To discuss this or any other private client matter, contact us.