One of the major changes with the Lasting Power of Attorney is a Certificate from a “Certificate Provider”. Pindoria Solicitors offers that service of Certificate Provider to our clients.
This is a very important role and something that we understand fully before we agree to act as your Certificate Provider.
A Certificate Provider is a person the Donor (that is you as the person making the Lasting Power of Attorney) chooses to complete a Part B Certificate of the Lasting Power of Attorney (LPA) to confirm that in his or her opinion the Donor:
- understands what an LPA is and understands the contents of their LPA;
- understands what powers they are giving to the Attorney(s) in their LPA;
- is not being pressured, tricked or placed under duress by someone else to make the LPA; and
- that there is nothing else that would prevent the LPA in question being created.
The Certificate
The Certificate is a vital part of the LPA form. Without it, the LPA is not valid and cannot be registered. For this reason, the Certificate must not be detached from the LPA.
As the appointed Certificate Provider for your LPA we have certain define statutory obligations to you. We must also read the LPA that you wish us to certify and hence, we need to understand the provisions contained in your LPA.
If someone challenges your capacity to make the LPA then it may be necessary for us, as your Certificate Provider, to explain to the Court of Protection our decision to sign the Certificate.
It should be noted we are only asked to give our opinion on your capacity to make an LPA at the time you were asked to certify the LPA. We are not responsible if your capacity subsequently changes or concerns are raised, for example, at the time of registering.
Who can act as a Certificate Provider?
There are two types of Certificate Provider:
Category A
Knowledge certification – a knowledge-based Certificate Provider is someone who knows the Donor personally and has done so for at least two years.
Category B
Skills certification – a skills-based Certificate Provider is someone chosen by the Donor and who considers that they have the relevant professional skills and expertise to certify the LPA.
The following are some suitable skills-based Certificate Providers listed on the form:
- Pindoria Solicitors as a Solicitors Regulation Authority law firm or any other solicitor, barrister or advocate;
- a registered healthcare professional, including a GP;
- a registered social worker; or
- an Independent Mental Capacity Advocate (IMCA).
The form also specifies that someone can be a Certificate Provider if they consider that they have the relevant professional skills and expertise to provide a Certificate but are not one of the professionals listed on the form.
What are our responsibilities as Certificate Provider?
We will need to talk to you as the Donor about LPAs generally, and about the contents of your LPA in a place where you feel able to speak or communicate with us freely and without inhibition.
We will need to talk to you in private and away from your Attorney(s) as we will need to confirm in the Certificate that we have done so. The Certificate is not valid if the Attorney is present when we discuss the LPA with you.
There may be circumstances where someone else needs to be present with you when we discuss the LPA with you. We must state on the Certificate if someone else was present and why. This person must never be the Attorney(s).
We will need to assess your capacity to understand what an LPA is, the importance of the LPA and the effect of the powers you are giving in the LPA.
Once we are satisfied, we should sign the Certificate straight after discussing the LPA with you. This is because we are certifying that, at the time when we sign the Certificate, we are of the opinion that you, as Donor, has the capacity to make the LPA.
The role of Certificate Provider is very important as it provides one of the main safeguards in the LPA process.
If anyone decides to object to the LPA at the point when it is being registered, we as Certificate Provider may be required to explain the reasons why in our opinion you as the Donor had the capacity to create the power and was not acting under pressure.
Understanding mental capacity
We have to be satisfied that, in our opinion, you understand the LPA you are making, have the mental capacity to make it and that you are not being forced into making it.
We will need to ask you specific questions to establish your capacity and understanding. Some of following open questions that you may be asked to establish if you:
1. Understand the LPA and the powers they are giving:
- What is an LPA?
- Why do you want to make an LPA?
- Who are you appointing as your Attorney?
- Why have you chosen to appoint x as your Attorney?
- What powers are you giving your Attorney(s)?
2. Have been put under pressure to make the LPA:
- Has the Attorney given you the answers to certain questions (like those listed above)?
- Do you have any reason to believe that the Attorney is not trustworthy?
3. Are aware of any other reasons why the LPA should not be created.
We will also need to ask questions that are specific to you and your circumstances and the contents of the LPA.
We will keep a record of the questions we asked you and the answers that you gave for your own records.
Pindoria Solicitors
October 2007
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