What are LPA Certificate Providers?
Who can be a certificate provider? How many certificate providers are needed? Can a certificate provider also be a witness?
Certificate providers play a vital role when creating your Lasting Power of Attorney (LPA) in safeguarding your interests and verifying your mental capacity.
This article answers the important questions relating to certificate providers to help you sign your LPA effectively.
An LPA is a legal document which allows you (“the donor”) to appoint one or more people (your “attorneys”) to help you make decisions or to make decisions on your behalf.
They are essential in giving you more control over what happens to you and your property if you have an accident or an illness and cannot make your own decisions. This is known as “lacking mental capacity” to make decisions.
A certificate provider acts as an important safeguard in ensuring that the donor had the necessary mental capacity when they signed the LPA. The donor must select one certificate provider for each LPA they create.
What is a certificate provider?
The certificate provider is an impartial third party who confirms that the donor understands what they are doing and that nobody is forcing or coercing them to make the LPA. They must confirm that:
• The donor understands the significance of the LPA
• The donor has not been put under pressure to make the LPA
• There has been no fraud involved in making the LPA
• There is no other reason for concern.
If it is possible, the certificate provider should discuss the LPA with the donor in private. Without any attorneys or other people present, before they sign to ‘certify’ their part of the LPA.
Who can be a certificate provider?
The certificate provider must be at least 18 years old and either:
• A friend, colleague or someone the donor has known well for at least 2 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 are doing and are not being forced to make an LPA.
‘People to notify’ can also be your certificate provider.
Your witness can also be your certificate provider.
Which professionals can be a certificate provider?
Someone with relevant professional skills can usually 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)
This is not an exhaustive list and other professionals may have the necessary skills to judge whether you can make an LPA.
You may have to pay a professional to act as your certificate provider.
Who cannot 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 have already made
• A member of you or your attorneys’ families (including wives, husbands, civil partners, in-laws and step-relatives)
• An unmarried partner, boyfriend or girlfriend of yours or 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
How should a certificate provider assess capacity?
The certificate provider must be aware of the relevant 2-stage test for mental capacity under the Mental Capacity Act 2005.
Stage 1: The Diagnostic Test
This questions whether there is an impairment or disturbance in the functioning of the donor’s mind or brain.
Stage 2: The Functional Test
This test is concerned with whether the impairment or disturbance is sufficient that the donor consequently lacks the capacity to make a particular decision.
A certificate provider can assume that the donor does not have capacity if they cannot:
• understand the information relevant to a decision
• retain that information
• weigh the information as part of a decision-making process, or
• communicate that decision using any means.
What must a certificate provider do?
The certificate provider must sign and date Section 10 of the donor’s LPA. For an LPA to be successfully registered with the Office of the Public Guardian, the certificate provider must sign and date Section 10 on the same day or after the donor has signed and dated Section 9 of the LPA.