If you are making a Lasting Power of Attorney or LPA, you will need a certificate provider to sign the LPA. We take a look at the role of the certificate provider and why they are important.
A Lasting Power of Attorney gives legal authority to someone to act on your behalf in the event that you ever become unable to manage your own affairs. This could be in respect of your property and financial affairs and in respect of your health and welfare.
When you make an LPA, you need to choose one or more attorneys. In addition, you also need to ask a certificate provider to sign. Without the signature of a certificate provider, the LPA will not be valid.
What is the certificate on an LPA?
The certificate is confirmation that you are able to make an LPA, specifically that:
- You have not been pressured into doing so
- You understand what the LPA is and what it contains
- You understand the effect that signing an LPA will have and the authority that it gives to your attorney
- There is nothing that means that the LPA should not be made
Who should I choose to be a certificate provider?
You can either choose someone whom you have known on a personal level for at least two years or someone with relevant professional skills. This could be:
- Your GP
- Another type of registered healthcare professional
- Your social worker
- A mental capacity advocate
The certificate provider needs to be independent from you, ie. you cannot choose:
- A family member or unmarried partner
- A family member of your chosen attorney or their unmarried partner
- Anyone employed by you or who is your business partner
- The person you have chosen to be your attorney
- Anyone whom you have previously appointed as your attorney
- Anyone employed by or involved with your care home, if you live in one, or anyone related to them
- A director or employee of a trust corporation that is an attorney under the LPA
What does the certificate provider do?
Your certificate provider must satisfy themselves that you fully understand the LPA and that you are not being coerced or tricked into signing it.
They should speak to you on your own and discuss the signing of an LPA to establish that you know the implications of signing. It is important that your attorney is not present when you discuss the LPA with your certificate provider, as this will invalidate it.
If anyone else is present because they are needed, for example, to interpret what you are saying, this must be noted on the certificate.
In the event that questions are raised in the future over capacity to sign or whether you were pressured, your certificate provider needs to be able to confirm that they did not believe this to be the case.
Questions the certificate provider should ask
In order to satisfy themselves that you are making the LPA freely and that you fully understand its effect, the certificate provider can ask questions such as:
- What is an LPA?
- What powers are you giving to your attorney?
- Why do you want to give these powers to your attorney?
- What affairs will your attorney be able to decide for you?
- What financial decisions will your attorney be able to make for you?
- Why have you selected the attorney that you have chosen?
- Has your proposed attorney told you how to answer these questions?
- Do you have any concerns over whether your attorney can be trusted?
- Is there any reason not to make an LPA?
If your certificate provider has any concerns, they are strongly advised to speak to an LPA solicitor who will be able to advise them further on the right course of action.
If you would like to speak to one of our expert estate planners, ring us on 01634 353 658 or email us at [email protected]