When planning for your future, a Lasting Power of Attorney (LPA) is a crucial document that gives you control over what happens if you’re unable to make decisions for yourself. However, you might be wondering about the role of a certificate provider in this process. Let’s explore and demystify this key aspect of creating an LPA in England and Wales.
What is an LPA and Why Do You Need a Certificate Provider?
An LPA is a legal document that allows you (the donor) to appoint one or more people (your attorneys) to make decisions on your behalf if you lose mental capacity. There are two types: one for financial decisions and another for health and care decisions.
Certificate providers play a vital role in this process. They act as guardians of the LPA process, ensuring that you’re making this decision of your own free will and with full understanding. Moreover, their involvement is crucial in preventing fraud or coercion, thus serving as a safeguard to protect your interests.
Who Can Be a Certificate Provider?
When it comes to choosing a certificate provider, you have two main options:
1. Someone you know well: This could be a friend, colleague, or acquaintance you’ve known for at least two years. It’s essential to choose someone who knows you well enough to judge your state of mind, rather than just a casual acquaintance.
2. A professional: This might include your GP, a professional Will writer, a solicitor, a registered social worker, or another professional with the skills to assess your mental capacity.
Interestingly, your witness can also serve as your certificate provider, which can simplify the process.
Who’s Excluded from Being a Certificate Provider?
To maintain impartiality, certain individuals are excluded from being certificate providers. This list encompasses your attorneys or their family members, your own family members, your business partners or employees, care home staff where you reside, and anyone running or working for a trust corporation appointed as your attorney.
How Does a Certificate Provider Assess Capacity?
The assessment of capacity is a crucial part of the certificate provider’s role. They employ a two-stage test based on the Mental Capacity Act 2005:
1. The Diagnostic Test: This determines if there’s an impairment or disturbance in the functioning of your mind or brain.
2. The Functional Test: This assesses whether the impairment or disturbance means you can’t make a particular decision.
To have capacity, you must be able to understand information relevant to the decision, retain that information, use or weigh that information as part of the decision-making process, and communicate your decision.
A competent certificate provider will engage in a conversation with you, asking questions to evaluate these points. Furthermore, they should conduct this assessment in private, without your attorneys present, to ensure there’s no undue influence.
What Does the Certificate Provider Need to Do?
Once the certificate provider is satisfied that you have the capacity to make an LPA and are doing so of your own free will, they need to sign and date Section 10 of your LPA form. It’s important to note that this must be done on the same day as, or after, you’ve signed Section 9.
Common Mistakes to Avoid
When dealing with certificate providers, there are several common pitfalls you should be aware of:
– Selecting a certificate provider who doesn’t know you well enough
– Having the certificate provider sign before you do
– Neglecting to have a private conversation with the certificate provider
– Assuming that any professional can be a certificate provider without verifying their qualifications
By being mindful of these potential issues, you can ensure a smoother LPA creation process.
Digital LPAs and Certificate Providers
As of 2024, the process of creating LPAs is transitioning online. While certificate providers will continue to play a crucial role in this digital process, the way they complete their part may change. Instead of signing a physical document, they’ll likely complete their part electronically.
The Importance of Choosing the Right Certificate Provider
Selecting the right certificate provider is a critical step in creating your LPA. Their role is to protect your interests and ensure you’re making this important decision freely and with full understanding. Therefore, whether you opt for a trusted friend or a qualified professional, it’s crucial to ensure they understand their role and are committed to acting in your best interests.
While this guide provides a comprehensive overview, it’s important to remember that LPAs are significant legal documents. Consequently, if you’re unsure about any aspect of the process, it’s always advisable to seek professional legal advice.
Need Help Getting Started with Your LPA?
At A.D.E Wills, we understand that creating an LPA can seem overwhelming. That’s why we’re here to assist you every step of the way. Our team of experts can guide you through the process, ensuring that everything is done correctly and in your best interests.
Don’t leave your future to chance. Instead, take control of your future decisions today. Contact us on 01865 507174 or email us at info@adewills.co.uk to learn more about our LPA services. We’re committed to helping you secure your future, your way.
Disclaimer: This article provides general information about Lasting Power of Attorney and the role of certificate providers. However, it should not be considered as legal advice. For specific guidance tailored to your individual circumstances, please consult with a legal professional.
