Lasting Powers of Attorney – the important role of the Certificate Provider

Your Certificate Provider will need to sign your LPAs to certify:

• 1. That they have discussed the LPAs with you;
• 2. That you understand the purpose of the LPA and the scope of authority conferred under it;
• 3. No fraud or undue pressure is being used to induce you to create an LPA; and
• 4. There is nothing else which would prevent the LPA from being created.

The role is therefore quite a serious responsibility, and can feel like a lot to ask of a friend or neighbour, for example.

Only certain people can act as your Certificate Provider and you need to be careful that no restriction applies to your choice.

The ‘Certificate Provider’ should be either:

• 1. Someone who has known you personally for at least 2 years, such as a friend, neighbour or colleague; or
• 2. Someone with relevant professional skills, such as your GP or solicitor.

A Certificate Provider cannot be:

• One of your attorneys or replacement attorneys;
• A family member or one of the attorney’s family members;
• Your partner (unmarried) or an attorney’s partner;
• Your business partner;
• Your employee or an attorney’s employee; or
• An owner, manager, director or employee of a care home that you live in.

The list is therefore quite restrictive and if you are struggling to find a suitable person to act, your GP, healthcare professional or a solicitor can be good options. A professional is arguably the most appropriate choice as your Certificate Provider in any event, due to their relevant professional skills.

Getting the Certificate Provider right

If a solicitor is to act as your Certificate Provider, ideally it should be a solicitor with expertise in private client law and in particular Lasting Powers of Attorney, as they are then certain to have the relevant skills and expertise.

The importance of appointing the right Certificate Provider was highlighted recently when a criminal defence solicitor who certified LPAs as ‘a favour’ for an elderly client was fined £6,000 by the Solicitors Regulation Authority (SRA) for failing to make the necessary checks regarding the document and the Donor.

The SRA found that Virinder Kumar Ghaiwal failed to appreciate the role and obligations of a Certificate Provider; in particular he failed to verify the client’s instructions to ensure that he understood the purpose of the LPA and scope of authority conferred under it.

It came to the SRA’s attention following a report by police that the client had been ‘persuaded’ to enter into the LPA, make a new Will and sell his home.

The SRA said that the client was entitled to expect that as a skills-based Certificate Provider Mr Ghaiwal would know about his duties and responsibilities.

The SRA advised solicitors that before signing the certificate, they should take a ‘suitably detailed personal and financial history of the donor, and if necessary insist on seeing them on their own, to satisfy the requirements concerning undue pressure and fraud.’ It is important too that file notes are made and retained.

A Certificate Provider is therefore far more than just a witness, and clients should be careful that the right person is asked to perform that role.

The Private Client team at Blake Morgan are a team of specialists with extensive experience in Lasting Powers of Attorney (LPAs). We can support you through the process of creating your LPAs, as well as providing expert legal advice and guidance on the appointment of attorney(s), your specific instructions and preferences and we can of course, act as your Certificate Provider.