No just in Certificate Provision
Some time ago I was contacted to ask if I would “just be the Certificate Provider” for a person’s Lasting Power of Attorney. It seems such an easy question and quick task, but there really is no just in Certificate Provision. This blog explains what the role of a Certificate Provider is in the context of a Lasting Power of Attorney and aims to demonstrated why I feel the word “just” minimises the importance of the role.
I’ll begin by outlining what a Lasting Power of Attorney is before moving on to describe the role of the Certificate Provider. I’ll close by letting you know what happened in answer to the query.
What is a Lasting Power of Attorney?
A Lasting Power of Attorney is a legal document that lets you chose who would speak for you if you ever couldn’t speak for yourself through a sudden accident, illness or longer-term ill health. A Lasting Power of Attorney is drafted, signed then sent to the Office of the Public Guardian for checking and validation (a process lasting around 20 weeks), the original copy is returned to you (or the correspondent) for safe keeping. I have blogged previously about what to do once you receive the validated Lasting power of attorney here .
Below is a picture of the Certificate Provider page in a Lasting Power of Attorney:
The person who makes the Lasting Power of Attorney is called the donor and the people (or persons) nominated to speak for the donor are called attorneys.
There are two different types of Lasting Power of Attorney, one for Health and Welfare decisions and one for Property and Finance decisions – you can’t combine them into a single document.
A Lasting Power of Attorney is a powerful legal document enabling a person they trust to speak for them if they lose capacity to make decisions in the future. The framework it operates in is the Mental Capacity Act 2005 and the purpose of the Act is to protect and empower people who may lack capacity.
What is a Certificate Provider?
A Certificate Provider is someone who confirms that the donor understands what they are doing in relation to making the Lasting Power of Attorney. It is the role of t the Certificate Provider to ensure that:
· The donor understands the significance of the Lasting Power of Attorney
· The donor has not been pressurised to create the Lasting Power of Attorney
· There has been no fraud involved ion making the Lasting Power of Attorney
· There is no other cause for concern
Information on the GOV.UK website for people creating an LPA outlines who can and can’t be a be a Certificate Provider.
“Who can be a certificate provider?
A certificate provider must be at least 18 years old and either:
• a friend, colleague or someone you’ve known well for at least two years – they must be more than just an acquaintance
• your doctor or lawyer or someone with the professional skills to judge whether you understand what you’re doing and are not being forced to make an LPA
‘People to notify’ can be certificate providers.
There are quite a lot of people who can’t be a certificate provider – for example, members of your family or your attorneys’ families. There’s a fuller list below.
The certificate provider must sign after you and can sign on the same day as you (the donor) or as soon as possible afterwards.
Someone who has known you well for at least two years
You should ask a friend or neighbour, someone from your social or sports club, a work colleague, or similar. They must have known you well for at least two years. They must know you well enough to have an honest conversation with you about making your LPA and the things they have to confirm when they sign the LPA.
If possible, they should discuss your LPA with you in private, without attorneys or other people present, before they sign to ‘certify’ their part of the LPA.
Someone with relevant professional skills
Usually, someone with relevant professional skills would be one of the following:
• a registered healthcare professional, such as your GP
• a solicitor, barrister or advocate
• a registered social worker
• an independent mental capacity advocate (IMCA)
Other professionals may have skills suited to judging whether you can make an LPA – contact the Office of the Public Guardian if you’re unsure about your choice of certificate provider.
You may have to pay a professional to act as your certificate provider.
”
The guide also explains who cannot act as a Certificate Provider:
“People who can’t be a certificate provider
The certificate provider must not be:
• an attorney or replacement attorney for the LPA
• an attorney or replacement attorney in any other LPA or enduring power of attorney that you’ve already made
• a member of your or your attorneys’ families – including wives, husbands, civil partners, in-laws and step-relatives
• an unmarried partner, boyfriend or girlfriend of yours or of any of your attorneys – whether or not they live at the same address
• your business partner or one of your attorneys’ business partners
• your employee or one of your attorneys’ employees
• an owner, manager, director or employee of a care home where you live, or a member of their family
• anyone running or working for a trust corporation appointed as an attorney in a financial decisions LPA
”
Reading about the role a Certificate Provider reveals it is more than a simple signature. Identity confirmation and potential assessment of the donor’s capacity (to complete the Lasting Power of Attorney) come into play. Time is needed to ensure that the donor understands the Lasting Power of Attorney, has not been put under pressure to make it or there is other reason for concern. This is not the work of moments or to be taken lightly. Using the phrase “just sign” I believe does not convey the purpose of the role and relegates it to something more like a signature witness.
What was the outcome to the query?
To return to the question, could I just be a Certificate Provider? I explained what is involved and that it meant more than a signature - I heard no more.
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